June 27, 1935.
Appeal from the Municipal Court of New York, Borough of Bronx, Second District.
H. Leonard King, for the appellant.
Harold C. Knoeppel [ Edmond A. Knoeppel of counsel], for the respondent.
A contract to paint two pictures of a particular size for hanging in the lobby of plaintiff's apartment house is a contract for work, labor and services and is not within the purview of the Sales Act (Pers. Prop. Law, §§ 82-159). Since the paintings have been completed and are held by the tenant at the disposal of the plaintiff landlord, the former is entitled in accordance with the contract to be paid the full price by crediting him with the payment of ten months' rent as it comes due from October 1, 1934, through July 31, 1935. The rent for the last ten months was not due at the time of the commencement of this action, and affirmative judgment for the tenant should not have been granted.
Final order and judgment modified by striking out the award on the counterclaim and by dismissing the same without prejudice, and as modified affirmed.
All concur; present, HAMMER, CALLAHAN and SHIENTAG, JJ.