
    (61 Misc. Rep. 278.)
    BINDER v. ROBINSON.
    (Supreme Court, Appellate Term.
    December 16, 1908.)
    1. Sales (g 4)—Sale Distinguished ebom Other Transaction.
    Where a chattel is in existence at the time a contract for its transfer is made, and the vendor is to do work thereon to adapt it to a particular use for the vendee, the contract is a sale.
    [Ed. Note.—For other cases, see Sales, Cent. Dig. g 9; Dec. Dig. g 4.*]
    2. Sales (g 340*)—Action eor Price—Pleading.
    A complaint alleging that plaintiff “made” for defendant “clothes and coats” did not set forth a cause of action for goods sold, but for work, labor, and material, since it failed to show that the articles to be supplied were in existence when the contract was made.
    [Ed. Note.—For other cases, see Sales, Cent. Dig. § 927; Dec. Dig. § 340.*]
    Appeal from Municipal Court, Borough of Manhattan, Second District.
    Action by Henry Binder against Caroline Robinson. From a judgment overruling a demurrer to the complaint, defendant appeals.
    Affirmed.
    See, also, 59 Mise. Rep. 155, 110 N. Y. Supp. 229.
    ' Argued before GIEGERICH, HENDRICK, and FORD, JJ.
    John F. Harrington, for appellant.
    Herman Weiss, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   HENDRICK, J.

The defendant .appeals from an interlocutory judgment overruling a demurrer by the defendant to the plaintiff’s complaint on the ground that it does not state facts sufficient to constitute a cause of action. A reading of the complaint shows clearly that it is an action for work, labor, and services, and not for a sale of goods, as claimed by the defendant. Where a chattel is in existence at the time the contract is made, and the vendor is to do some work upon it to adapt it to the uses of the vendee, such contract is a sale. But the complaint in the case at bar alleges that the plaintiff “made” for the defendant “clothes and coats.” Clearly these chattels were not in existence, but were to be made by the plaintiff, and therefore the contract does not fall within the rule above stated. It may also be said that there is no evidence that even the material out of which the clothes and coats were to be made was in existence.

Judgment overruling demurrer affirmed, with costs, with leave to defendant to plead, upon payment of the costs in the court below and in this court within five days. All concur.  