Imágenes de páginas

Second Department, March, 1910.

[Vol. 137. was refused, and continued to be so refused up to the time of the commencement of the action. The complaint demanded judgment for $25 per month during the term and for the $300 paid in advance upon the rental. The answer put all of the material allegations of the complaint in issue, and it developed upon the trial that the defendant had not authorized her husband in writing to enter into the lease for a terın of years, and, upon defendant's motion to dismiss the complaint, the motion was granted in so far as it related to the damages alleged for failure to place the defendant in possession of the premises, but was denied in so far as it involved the $300 paid in advance upon such lease. This question was fairly litigated, and there was evidence to show that the plaintiff paid a portion of the $300 to the defendant's husband in her presence, and after a conversation in which the defendant had declared herself as being satisfied with the lease, and the defendant herself admits that she did not make any complaint in the premises until she discovered that her husband had exceeded his authority and had attempted to lease the entire building instead of a portion of it. The learned court charged the jury that the action “is brought by the plaintiff, Henry Walder, against Mrs. Bridget English to recover the sum of three hundred dollars. There was another clai:n embodied in the pleadings at the outset of the case, but the case has taken such a turn as that by mutual consent there is only one question to be submitted to you, and that relates to wliether or not this defendant shall pay back to the plaintiff the sum of three hundred dollars, which was passed from hand to hand on the 11th day of June, 1907.There was no exception to this part of the charge, and the record indicates that certain amendients to the pleadings, which are not set forth were allowed, with directions. that they be inserted in the judgment roll. These were doubtless for the purpose of conforining the pleadings to the cause of action actually litigated. We think the introduction of the lease and certain receipts in evidence, the lease being executed by James Englislı, was not error. The coinplaint alleged the making of a contract in behalf of the defendant by her husband, James English, and the defendant denied this. It was proper to show that a contract of the nature alleged in the complaint had been made, as one of the steps in showing that it was done in behalf of the defendant, and when the plaintiff failed to

App. Div.]

Second Department, March, 1910. show that the authority was in writing, as was necessary under the statute, he failed to establish this much of the cause of action alleged, but it was competent as showing the foundation for the payment of the $300, and when the defendant adınitted that James English had some authority, and it was shown that he received the $300 in her presence and with her approval, and that she refused to give the plaintiff possession under the lease, there was evidence from which the jury were entitled to find that the $300 belonged to the plaintiff; there was an implied promise on the part of the defendant to return the same unless she complied with the conditions of the lease under which she came into possession of the same. As has been well said she was not entitled to keep both the premises and the money which had been paid to her as the rental of such premises.

The judgment and order appealed froin should be affirmed, with costs.

JENKS, Thomas and Rich, JJ., concurred; Burr, J., dissented.

Judgment and order of the County Court of Westchester county affirmed, with costs.


Realty CORPORATION and Others, Defendants, Impleaded with FRANKLIN L. SHEPPARD and Howard R. SHEPPARD, Doing Business as Isaac A. SHEPPARD & COMPANY, Appellants.

Second Department, March 31, 1910.

Real property-fixtures – lien of prior mortgage – breach of conditional

sale by contractor.

Where, without the knowledge of the owner of a tenement house under process

of construction, a person furnished the contractor with ranges for heating and cooking purposes, under a contract of conditional sale, they became fixtures when annexed to the realty by the contractor, and are covered by the lien of a prior mortgage given by the owner although the contractor failed to pay the

purchase price. The lien of a mortgage covers all that was realty when the mortgage was accepted as security, and all accessions to the realty except where by valid agreement to which the mortgagee is a party, the character of chattels is impressed upon accessions.

Second Department, March, 1910.

[Vol. 137. APPEAL by the defendants, Franklin L. Sheppard and another, etc., from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of said county on the 6th day of January, 1909, upon the decision of the court rendered after a trial before the court without a jury.

William R. Wilson [Charles L. Apfel with him on the brief], for the appellants.

Edward Snyder, for the respondent. WOODWARD, J.:

The defendants Sheppard appeal from a judgment in favor of the plaintiff in an action to foreclose a real estate mortgage.

In or about January, 1907, the defendant Bergen Heights Realty Corporation was the owner of the mortgaged premises described in the complaint, and at that time made a contract with one Sacks, by the terms of which he was to cause to be installed in a certain tenement house in course of construction on the premises seventy-one ranges for lieating and cooking purposes. Sacks bought the ranges from the defendants Sheppard under a contract providing that the title should remain in the vendors until the purchase price was paid; the stoves were installed in the tenement house in the following June, and Sacks did not pay the purchase price in full. Prior to that time, in May, 1907, the defendent corporation mortgaged the premises to secure the payment of the sum of $10,000, and the plaintiff owns this mortgage by assignment. The defendants Sheppard contend that they are not proper parties defendant in the foreclosure action; that the ranges did not become a part of the realty for the reason that they were sold to Sacks under a contract of conditional sale, which was duly filed, and for the further reason that they were not annexed to the freehold in such manner as to become fixtures. They claim that the judgment operates to deprive them of their property without their consent, and without due process of law.

The ranges were placed upon the premises with the consent and at the request of the owner and mortgagor, who had no knowledge of the agreement between the contractor, Sacks and the defendants Sheppard. The owner knew at the time the mortgage was given

App. Div.]

Second Department, March, 1910. that the ranges were to be installed, and the contract of alleged conditional sale was not filed until a month later.

The manager in charge of the office of the defendants Sheppard describes in this way the manner in which the ranges were placed in the tenement house : “ They are a portable range, connected with the flue with an elbow, connected with hot water boilers by a coupling to the water back, and a water back to the range. Then it comes down and connects with the coupling to the water back, then simply a round elbow that sets in the flue, portable, not bricked in any way. Just an ordinary drum elbow, no fastening whatever, just set into the flue hole, and these ranges were just a short distance from the wall, a couple of inches, not fastened to the floor, set on a concrete hearth. * * * It could be disconnected by unscrewing this coupling and removing this elbow, that is the only coupling that it would be necessary to unscrew in order to take the ranges out.”

It is a matter of common knowledge that heating and cooking ranges form a part of tlie necessary and permanent equipment of a tenement house; that they are not ordinarily supplied by tenants, and there is evidence in the record of such custom.

In Potter v. Cromwell (40 N. Y. 287) a certain portable grist mill was held to be a fixture which could not be taken from a purchaser at sheriff's sale under execution against the original owner of the premises where it was placed. The court said: “In Crane v. Brigham (3 Stockton, N. J., 29), the chancellor of New Jersey held that the permanency of the attachment does not depend so much upon the degree of physical force with which the thing is attached, as upon the motive and intention of the party in attaching it. If the article is attached for temporary use, with the intention of removing it, a mortgagee cannot interfere with its removal by the mortgagor. If it is placed there for the permanent improvement of the freehold, he may. * * * The law upon this subject is very correctly and succinctly summed up in the case of Teaff v. Hewitt (1 McCook's Ohio, 511, 529-530), where it was held that the true criterion of a fixture is the united application of three requisites: First. Actual annexation to the realty, or something appurtenant thereto. Second. Application to the use or purpose to which that part of the realty with which it is connected is

Second Department, March, 1910.

[Vol. 137. appropriated. Third. The intention of the party making the annexation, to make a permanent accession to the freehold.”

The Cromwell case was followed in Jermyn v. Hunter (93 App. Div. 175). This was an action to recover possession of a steam boiler and other parts of a heating apparatus installed for the owner of certain real estate by his contractor under circumstances similar to those in this case. A judginent in favor of the plaintiff was reversed. The discussion of the questions here involved in the opinion of Mr. Justice Hatch is directly applicable to the facts here presented, and it is necessary to quote only a few words in support of my conclusion that the judgment should be affirmed : “If vendors of personal property seek to make a conditional sale they should be required to deal with the owner of the property, and not alone with the contractor without notice to the owner. Unless they do, there is no justification for imposing an incumbrance upon the building, without the owner's knowledge or consent. The Lien Law of the State (Laws of 1897, chap. 418, art. 1, as amd.) furnishes adequate protection for vendors of chattels which enter into the construction of realty. These rights and remedies have been adopted for the protection of vendor, contractor and owner and should be held sufficient in remedy. An attempt to make application of the doctrine which obtains between a vendor and owner may easily lead to the perpetration of a gross wrong upon the owner and the incongruity is so apparent as to call for its instant rejection. The sale of the property at the foreclosure carried with it the title to these fixtures, and the defendant as purchaser at the sale acquired good title."

The lien of a mortgage covers all that was realty when the mortgage was accepted as security, and all accessions to the realty, except when by a valid agreement to which the mortgagee was a party the character of chattels is impressed upon the accessions. (McFadden v. Allen, 134 N. Y. 489.) There was no such agreement in this case.

The judgment should be affirmed, with costs.
JENKS, Bưer, Thomas and Rich, JJ., concurred.

Judgment of the County Court of Kings county affirmed, with costs

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