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Binder v. Robinson

Supreme Court, Appellate Term
Dec 1, 1908
61 Misc. 278 (N.Y. App. Term 1908)

Opinion

December, 1908.

John F. Harrington, for appellant.

Herman Weiss, for respondent.


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.

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.


Summaries of

Binder v. Robinson

Supreme Court, Appellate Term
Dec 1, 1908
61 Misc. 278 (N.Y. App. Term 1908)
Case details for

Binder v. Robinson

Case Details

Full title:HENRY BINDER, Respondent, v . CAROLINE ROBINSON, Appellant

Court:Supreme Court, Appellate Term

Date published: Dec 1, 1908

Citations

61 Misc. 278 (N.Y. App. Term 1908)
113 N.Y.S. 766