
    L. Sherwood Palmer et al., Respondents, v. John B. Harrison, Appellant.
    (Supreme Court, Appellate Term,
    June, 1899.)
    Custom — Must be clearly established.
    Where conflicting evidence is given as to the existence of a local custom that, in the case of loans upon real estate, the attorney for the lender should pay out of his compensation the disbursements for searches, etc., and not the brokers for the borrower, a verdict in favor of the brokers against the attorney, based on the existence of the custom, will be reversed.
    Appeal by the defendant from a judgment rendered in the Eleventh District Municipal Court in favor of the plaintiffs.
    Thomas W. McKnight, for appellant.
    Mayer & Gilbert, for respondents.
   Freedman, P. J.

The complaint in this action was oral, and was amended on the trial from a cause of action for breach of contract, to one for money had and received, and the plaintiffs recovered a judgment against the defendant for the sum of $215.25.

From a large amount of testimony, nearly all of which is wholly ■immaterial upon the main question at issue, the following substantially undisputed facts may be gleaned. The plaintiffs were real estate brokers and the defendant is an attorney and counsellorat-law.

One of the plaintiffs (Palmer) applied to the defendant to obtain a loan of $80,000 to be made upon the property of one Smith, a client of the plaintiffs. The defendant said he thought the loan could be obtained, and asked Palmer what Smith would pay, and Palmer replied in these words: “ Two per cent, to cover.”

The loan was obtained by defendant, and, at the time the title passed’, Smith gave the defendant his check for the sum of $1,600, being the 2 per cent, upon the $80,000 which he had agreed to pay.

Defendant then drew his check for the sum of $584.75, which with an itemized bill for $215.25, claimed to have been paid by him for disbursements in searching title, procuring insurance, etc., the defendant tendered the plaintiff’s, who were both present. The plaintiffs thereupon insisted that they were entitled to the sum of $800 net, and that the disbursements should be paid by the defendant from the 1 per cent., which, it was conceded, belonged to him for his services in obtaining the loan.

After considerable controversy over the question as to who should pay the disbursements aforesaid, the plaintiffs took the check and bill, as they say, “ under protest,” and sometime thereafter brought this action to recover the sum of $215.25 claimed by them to have been retained by the defendant without right.

There is no claim made that the defendant was not entitled to at least 1 per cent, for his services, neither does Palmer, who made the agreement with the defendant relative to obtaining the loan, testify that the defendant expressly agreed that the disbursements should be paid by him (defendant) although he had some ten or twelve conversations with the defendant regarding the transaction. The claim of the plaintiffs that they are. entitled to the sum of 1 per cent, exclusive of disbursements does not rest, therefore, upon any express agreement with defendant, and it devolved upon them to show what was the meaning of the assertion that Smith would pay 2 per cent, to cover,” and to how much of that- sum they were entitled to receive as brokers. They endeavored to do this by showing that it was the custom among brokers and attorneys, in cases of loans of this character, for the lawyer obtaining the loan, making the searches, etc., to receive the sum of 1 per cent., which sum should include the disbursements.

“ Such custom must be shown to be of such a uniform continual and general usage that the defendant must be presumed to have contracted with reference to it.” Scott v. Brown, 27 Misc. Rep. 204, and cases cited.

But the plaintiffs’ testimony upon this point is vague and uncertain, while the testimony given on behalf of the defendant is clear and convincing that the custom in cases similar to the one at bar, is for the broker to pay the disbursements and the attorney to receive the sum of 1 per cent., exclusive of the expenses in making the searches etc. As the judgment must, therefore, be reversed, it is unnecessary to consider the other points raised by the appellant.

Judgment reversed, new trial ordered, with costs ^to' the appellant to abide the event.

MacLeaw and Leventbitt, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  