BIJUR, J.
Plaintiffs, upon a single order and on one bill including all the items, sold defendant several lots of clothing. Plaintiffs delivered them all at one time. Defendant retained the major portion, but returned one entire lot and a part of items out of every lot, claiming that they were not as agreed.
The chief point raised by plaintiffs-appellants is that the contract was a whole and indivisible, and that the acceptance by defendant of part of the goods constituted an acceptance of the whole. The learned judge below, in a memorandum on the denial of the motion for a new trial, cites Ming v. Corbin, 142 N.Y. 334, as justifying the application of the contrary doctrine; but I find nothing in that case to warrant that view. On the contrary, the doctrine seems to be well recognized in that case; but the conduct of the parties, and particularly their communications, are held to have indicated plainly an intention to separate the two classes of securities there sold. Furthermore, even by the original contract they were to have been delivered at entirely different times. Defendant in the case at bar sought to overcome the application of the doctrine of a single contract, by offering evidence — which was duly objected to — of a custom of the trade that parts of a single shipment might, if they did not conform to agreement, be returned. Apart from the fact that, on the record, the custom was not sufficiently proved, it was not, I think, a custom of which judicial cognizance can be taken because it would contravene an established rule of law. See Hopper v. Sage, 112 N.Y. 530.
SEABURY and PAGE, JJ., concur.
Judgment reversed and new trial granted, with costs to appellants to abide event.