#### John F. Leach, Respondent, *v.*James Hughes, Appellant.

(Supreme Court, Appellate Term,

November, 1911.)

Charter party — Interpretation and effect in general — Interpretation in general — Duration.

Customs and usages — Notice or knowledge.

A custom in trade that, where boats are hired out for an indefinite period, they must be returned to the owner within a reasonable time after he makes demand therefor, and, if not so returned, the charterer must pay the reasonable market value for the use of the boats, even though it is in excess of the amounts for which they were originally chartered, is a local trade custom; and, where the owner of a boat chartered it for an indefinite period, he must show that the charterer had knowledge of such custom in order to bind him thereby.

Where .the charter of plaintiff’s boats to defendant for an indefinite period contemplated at least one trip and no obligation *70to return the boats until he had made, the trip, his right to the use oí the boats cannot be cut ofi by a notice demanding their return within sixty days or, in default thereof, payment of the market value of their use, so as to charge him with the difference

between the original charter price and the market value of the use of the boats after the service of the demand.

Appeal by defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, first district, rendered in favor .of the plaintiff.

Martin A. Ryan, for appellant.

Black, Varian, Bigelow & Somers, for respondent.

Seabury, J.

The complaint alleges that the plaintiff chartered two boats to the defendant for an indefinite time, and the third one for a definite time; that he subsequently gave defendant notice, requesting the return- of each of his -boats within sixty days or, if the defendant did not return them, he should pay the market value thereof; that defendant .failed either to return the boats or pay the market value thereof from the time in excess of ten days for which he held them, to the plaintiff’s damage of $381. The defendant claimed that each of the boats was chartered for a trip, and that he returned them.after they had been used for one trip, and that the plaintiff had been paid in full.

In support of his cause of action, the plaintiff attempted to prove that there is a custom in the trade.that, when boats are hired out for an indefinite period without any time beihg specified for their return, they must be returned to the owner within a reasonable time after the owner makes demand, and, if not so returned, the charterer must pay the reasonable market value for the use of the boats, even though that sum is in excess of the amount for which they were originally chartered. The plaintiff also proved that the boats were chartered for an indefinite period and that two of the boats were chartered on February 27, 1909, and that one of them was chartered on March 9, 1909. On March twelfth, the plaintiff demanded the return of the two boats chartered on February twenty-seventh; and, on March twenty-*71ninth, he demanded the return of the boat chartered on March ninth. In each case the demand was for the-return of the boat within ten days. The defendant kept two of the boats for thirty-three days and one of them for fifty-two days, but made only one trip with each boat and returned each boat as soon as it “ got light.” Two of the boats were chartered for three dollars per day and one of them for five dollars per day. These amounts the defendant paid to the plaintiff, and the plaintiff has recovered a judgment for the difference between the original charter price and the market value of the boats after the service of the demand. The defendant testified that each of these boats was chartered for a trip. If, however, we accept as correct the testimony of the plaintiff on this subject, it appears that the boats were chartered for an indefinite time.

The attempt of the plaintiff to prove a trade custom, that, where there is no specified time fixed for the return of a boat, it is to be returned within a reasonable time after demand, regardless of the fact that the boat has not completed a single trip, was not successful. While all are presumed to know the general customs of the land, there is no such presumption as to particular usages of various trades and localities. 27 Am. &Eng. Encyc. of Law, 743.

The alleged custom which the plaintiff endeavored to establish was a local trade custom and as such it was incumbent upon him to show that the defendant had knowledge or notice of its existence.

As was said in Walls v. Bailey, 49 N. Y. 464; *“*For a party to be bound by a local usage, or a usage of a particular trade or profession, he must be shown to have knowledge or notice of its existence.” See Booth Bros. *&*H. I. G. Co. v. Baird, 87 Hun, 452.

The evidence which the plaintiff adduced was insufficient to establish such a local trade custom as he claimed to exist. If, however, we should assume the evidence as to the existence of the custom to be sufficient, the parties in this case cannot be presumed to have contracted, in reference to it, in view of the plaintiff’s failure to move that the defendant had knowledge or notice of its existence.

*72The ease of the-plaintiff, therefore, rests solely upon his testimony that the boats were chartered to the defendant for an indefinite period. We think, that the reasonable intent of the charter contemplated at least one trip and that, in the absence of any fault or negligence on the part of the defendant, he was not obligated to return the boats until he had made one complete trip. Straits of Dover Steamship Co. v. Munson, 95 Fed. Rep. 913. The right of the defendant to use the boats under the charter for a single trip could not be cut off by the notice and demand which the plaintiff served on the defendant, and such a notice or demand did not justify charging the defendant for the difference between the charter price and the market value of the boats.

It follows that the judgment should be reversed, and the complaint dismissed, with costs to the appellant.

Guy and Cohalah, , JJ., concur.

Judgment reversed.