
    Henry Binder, Respondent, v. Caroline Robinson, Appellant.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Contracts — Interpretation of contract — Particular agreements — Contracts for manufacture — Distinguished from sale.
    Sales — Nature of contract — Subject of sale — Property not in existence— Distinguished from contract for work, labor and services.
    Where a chattel is in existence at the time a contract with the seller is made to do some work upon it to adapt it to the uses of the buyer, the contract constitutes a sale; but a complaint alleging a contract for work, labor and services in making clothes for defendant, where the articles were not in existence when the contract was made, states a cause of action.
    Appeal by the defendant from an interlocutory judgment overruling a demurrer to the complaint in the Municipal Court of the city of New York, second district, borough of Manhattan.
    John R. Harrington, for appellant.
    Herman Weiss, for respondent.
   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'he 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.

Giegerich and Ford, JJ., concur.

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