
    Clementine Haag, Plaintiff, v. Sigmund Klee, Defendant, and Pacific Tea Company, Impleaded Defendant.
    Supreme Court, New York County,
    December 23, 1936.
    
      J. A. Hughes, for the motion.
    
      Newgass, Nay fade & Waldheim, opposed.
   Valente, J.

This is a motion by defendant Klee to dismiss the complaint on the ground that it fails to state a cause of action against him. The theory upon which the plaintiff proceeds is that the defendant, her employer, sold impure ham to her and impliedly warranted that the ham was reasonably fit for consumption. The facts set forth in the complaint reveal, however, that the defendant Klee did not effect a sale of the ham to the plaintiff. Section 82 of the Personal Property Law provides that a sale takes place when a seller transfers property in goods to a buyer “ for a consideration called the price.” Section 90 of the same statute provides 'that the price may be made payable in any personal property.” The consideration to be furnished by the plaintiff in return for the food consisted of services to be rendered. These were not personal property and, therefore, the transaction between the parties was not a sale. As the complaint fails to allege that the defendant Klee was negligent, no cause of action on any theory is set forth against him. The motion to dismiss for insufficiency is accordingly granted, with ten dollars costs, with leave to amend within ten days from the service of a copy of this order, with notice of entry, upon payment of ten dollars additional costs.  