App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1897.

chandeliers are fixtures because, if removed without first shutting off the gas, their removal would permit the gas to flow into the house. Yet it is settled that chandeliers are not fixtures. (McKeage v. Hanover Fire Ins. Co., 81 N. Y. 38.) As to the heaters in the case at bar, they were not essentially different from portable stoves, and there is no more reason to regard them as fixtures than there would be to treat such stoves as real property. (Freeland v. Southworth, 24 Wend. 191.)

While it is no doubt true, as contended by the appellants, that the intent with which chattels are attached to the freehold is a very important element in determining whether they are to be regarded as fixtures or not, the only evidence of intent we have in the present case is as to that of Van Varick, who put up the ranges and heaters. We know nothing as to what Mrs. Winter intended. If Van Varick is to be deemed her agent, her intent was that the ranges and heaters should become a part of the realty when paid for.

But, even if the character of the articles and the mode of their attachment to the freehold had been such that the ranges and heaters might have been deemed fixtures in case the owner of the houses placing them therein had become their unqualified owner, they nevertheless continued to be personal property, by virtue of the arrangement between the purchaser and the vendor (the plaintiff), to the effect that the title should remain in the latter until the goods were fully paid for. (Ford v. Cobb, 20 N. Y. 344.) In the case cited, it is true, the grantee of the land had notice of a claim on the part of the vendor of the alleged fixtures by a chattel mortgage on file; but that such a notice is not necessary to protect the original vendor's rights is apparent from the earlier case of Mott v. Palmer (1 N. Y. 564), where it was held that fences on a farm which had been erected by a third person under an agreement that the builder might remove them at will did not pass by a conveyance of the freehold, though such fences were apparently part of the realty and the grantee had no notice of the arrangement permitting their removal.

It is to be observed also that the defendants are in no wise purchasers for value of the ranges and heaters if regarded as personal property. Their only claim of title is by means of the conveyance of the houses in which the ranges and heaters were placed.

SECOND DEPARTMENT, MARCH TERM, 1897.

[Vol. 15.

I cannot see how the rights of the parties are affected by the statute requiring the filing of contracts for the conditional sale of personal property on credit. (Laws of 1884, chap. 315, as amended by Laws of 1892, chap. 632, and Laws of 1893, chap. 684.) Household goods are excepted from the operation of that act, where, as in the present case, the contract has been executed in duplicate and one duplicate has been delivered to the purchaser. The referee has found correctly, as it seems to me, that the ranges and heaters in question are household goods, and, therefore, outside the operation of the statute. Furthermore, the amendment of 1893 excepts "portable furnaces" from the effect of the Conditional Sales Law, under which designation the heaters are certainly included; and that amendment, being enacted and taking effect before the contract in the present suit, clearly applies to it. (See Duffus v. Howard Furnace Co., 8 App. Div. 567.)

For these reasons, as well as those stated by the referee in his opinion,* I think the judgment should be affirmed.

All concurred.

Judgment affirmed, with costs.

The following is the opinion of the referee:

TO THE SUPREME COURT:

I, William J. Carr, the referee herein appointed to hear and determine the issues in this action, do hereby report :

The hearing on the issues herein was regularly brought on before me, and the testimony adduced by the parties hereto reduced to writing, and is hereto annexed, and on the same I do find as follows:

On March 1, 1894, the plaintiff made to one Peter Van Varick a written proposal to furnish to said Van Varick, for use in certain houses then being built on Van Voorhis street in the city of Brooklyn, owned by one Annie Winter, certain heaters and ranges to be fitted in and attached to said houses.

On April 18, 1894, Van Varick accepted the proposal, and there was indorsed on the back of the written proposal a memorandum in writing, in which it was provided that the plaintiff should be paid in installments, part on delivery of the goods, part in thirty days from delivery, and the balance within sixty days from delivery. The memorandum contained a clause as follows: "And it is understood that the goods specified in this contract are not to be considered as sold or title to be passed until fully paid for." This memorandum was signed by the vendee, Van Varick. At the same time the written contract, proposal and acceptance were executed in duplicate, one given to the vendee and one retained by the vendor.

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1897.

THE BOARD OF COMMISSIONERS OF CHARITIES AND CORRECTIONS, on the Complaint of TESSIE COWIE, Respondent, v. RICHARD MCCLOSKEY, Appellant.

Bastardy proceedings upon an appeal from a filiation order - trial de novo in the County Court right of appeal to the Appellate Division.

Upon an appeal from a filiation order made by a police justice, the County Court is not confined to a determination of the question whether the police justice erred on the evidence before him, as section 864 of the Code of Criminal Procedure requires a trial de novo in the County Court.

The amendments, made in 1890, to sections 749 and 751 of the Code of Criminal Procedure, relating to a review of "a judgment upon conviction," have not changed the character of the proceeding on appeals from orders in bastardy proceedings; sections 861-880 provide a complete scheme for appeals in such cases and prescribe the powers of the court on such appeals.

Quare, whether an appeal lies to the Appellate Division from an order of the County Court made in a bastardy proceeding.

APPEAL by the defendant, Richard McCloskey, from an order of the County Court of Kings county, entered in the office of the clerk

In the latter part of the month of April, 1894, in pursuance of the contract, the vendor delivered at the houses Nos. 179 and 181 Van Voorhis street four ranges and four heaters which were of the aggregate value of $166. There were furnished for each house a “No. 7 range" with boiler; a "No. 17 range without a boiler;" one "No. 4 Fidelity heater and one No. 7 Fidelity heater." The plaintiff sent a man to the houses who set" the ranges and heaters. The No. 7 ranges" were very much the same as ordinary cook stoves, except that they had a water back attachment connected with a galvanized iron boiler which rested horizontally on iron bracket supports arising from the sides of the stoves; the boilers were connected with the water supply of the house by screw couplings in the usual manner for the purpose of furnishing hot water at the adjoining sink. They were set up against the wall in the corner of the room used as the kitcher, and connected by a smoke pipe with the flues in the house. These ranges appear to have been used on the upper floor of the house. The "No. 17 ranges" were similar, except that they are without boilers. There is some dispute as to the manner in which these "No. 7 ranges" were set. According to the plaintiff they were shoved into the fire “place” and the water back turned around “so the plumber could run water into it," and according to the testimony of the defendant all the ranges were "set" alike in the corners of the rooms used as kitchens, in which rooms there were no fireplaces. There is, however, no substantial conflict as to the manner in which they were connected with the water pipes, etc., of the houses.

SECOND DEPARTMENT, MARCH TERM, 1897.

[Vol. 15.

of the county of Kings on the 16th day of December, 1896, affirming an order of filiation made against the defendant by a police justice of the city of Brooklyn.

Francis A. McCloskey, for the appellant.

Charles T. B. Rowe, for the respondent.

CULLEN, J..

It is unnecessary to determine the question whether in a bastardy proceeding an appeal lies to this court from an order made by the

The heaters were "set" as follows: One on the basement floor of the house, by being shoved into the fireplace, which was purposely adapted for occupancy by such a heater; the smoke pipe passed through a piece of sheet iron fastened in the fireplace over the heater; in the rear of the heater was a brick chamber, into which radiated the heat; this chamber was built with an arch to prevent the heat from going up the chimney, and to throw it into a flue connecting with a register in the fireplace of the floor above, used as a parlor. The heater used on the upper floor had no register attachment.

Both heaters could be removed from the respective fireplaces without any injury to the freehold.

It appears that Van Varick, the vendee, failed to make the payments required by his contract.

On the 12th day of June, 1894, the plaintiff filed a copy of the contract in the office of the register of Kings county; in the meanwhile, Annie Winter, who owned the real estate at the time of the delivery of the goods, conveyed the premises to Charles J. Titus, by deed dated and recorded June 6, 1894; and by deed dated August 6 and recorded August 15, 1894, Titus conveyed the premises to these defendants. The ranges and heaters passed with the realty to the successive grantees of the real estate, and are now in the possession of the defendants in this action.

On November 5, 1894, the plaintiff demanded possession of the ranges and heaters from the defendants, and possession was refused. The plaintiff thereupon brought this action, to recover damages against the defendants, on the ground of conversion, claiming that the title to the goods was still in him.

The defendants answer that the goods were sold for use, in such a way that they became attached to and formed a part of the realty, and that, as they were purchasers of the realty in good faith, and for valuable consideration, their title to the fixtures in the house is now superior to that of the plaintiff. They contend furthermore, that if these goods did not become fixtures, but remained personal property, the filing of the contract in the register's office was of no avail to the plaintiff, as the goods were household goods, and as such excepted from the operation of chapter 315 of the Laws of 1884 by chapter 684 of the Laws of 1893, and the prior acts it amended; and that in such case the plaintiff, having intrusted his property to a person, who, by its possession, might induce bona fide

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1897.

County Court. In People ex rel. Comrs. of Charities v. Cullen (151 N. Y. 54) the Court of Appeals intimated that the right to such an appeal is open to grave doubt. But we find no reason to interfere with the judgment of the court below on the merits.

On the hearing in the County Court the appellant insisted that that court was limited to an examination of the proceedings before the police justice, and that the only matter to be determined by the purchasers to deal with him as its owner, was estopped from asserting title against a purchaser for value without notice.

Perhaps the latter point may be considered first more profitably.

The scheme of the Conditional Sales Law of 1884 was to render void against bona fide purchasers for value conditional sales of personal property, unless the contract of sale was filed in the office of the county clerk or register of the county where the vendee then resided.

If this conditional sale was of such a nature that the contract should have been filed in the register's office, there can be little doubt that the conditions were void as against any bona fide purchaser from that vendee or his privies.

The agreement was made and the goods delivered in April, but the contract was not filed until June twelfth, several days after the defendant's grantor, Titus, had bought the real estate from Annie Winter for a good and valuable consideration.

If, by the delay in filing the contract, Titus had acquired any rights against the plaintiff, his rights passed to these defendants, who can now assert them as privies of Titus. The question arises whether or not these goods were such as would fall within the exceptions of section 7 of chapter 315 of the Laws of 1884, as it was in force at the time of the sale (Laws of 1893, chap. 684).

Section 7 distinctly excepts from the operation of the act “house old gooas," provided the contract of sale be executed in duplicate, one delivered to vendee and one retained by the vendor. This is precisely what was done in this case.

The learned counsel for the defendant asserts in his brief that if these goods are not fixtures, then they are "household goods." If so, the failure to file the agreement in time was of no disadvantage to the plaintiff, as there was no obligation to file the agreement at all, and the conditions of the agreement would be conserved even against purchasers in good faith and without notice, if the contract were executed in duplicate as provided in section 7 of the act as amended, it being the scheme of that section to make the duplicate execution, etc., of the contract equivalent to the filing of a copy of the contract in so far as the goods therein specifically enumerated are concerned.

In Iden v. Sommers (46 N. Y. St. Repr. 240) the plaintiff delivered to one Wolff gas fixtures." under a contract of conditional sale to be paid for in installments. The fixtures were annexed by Wolff to his house for use. Subsequently he mortgaged the property to the defendant, who foreclosed his mortgage and disposed of the fixtures. The defendant was, thereupon, sued in conversion for the value of the fixtures; and he sets up the defense that he was a mortgagee in good