The opinion
Leventritt, J. (concurring).
The custom which . the plaintiffs’ invoke was not such a uniform, continuous and general usage that the defendant must be presumed to .have contracted with reference to it. Dickinson v. City of Poughkeepsie, 75 N. Y. 65, 77. It was rather local, partial or personal, having reference to a par- i ticular trade. Such a custom raises no conclusive presumption (Walls v. Bailey, 49 N. Y. 464 ), and it was, therefore, necessary *205 for the plaintiffs to show that the defendant had knowledge of its existence. Harris v. Tumbridge,, 83 N. Y. 92, 100 . Hot only is there no evidence of knowledge, or notice on the part of the defendant, but the latter affirmatively testified that no such custom obtained, and that if it did, he was entirely ignorant of its prevalence. Ho claim is made that the usage was expressly incorporated in the contract.
The court below erred in that it applied the principles appertaining to a general custom, of which no one can be heard to profess ignorance, instead of those relating to a special custom, knowledge, of which must be brought home to the contracting parties. ■ The judgment must, therefore, be reversed.
Judgment reversed, with costs to appellant to abide event.