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 the 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 sub * ject 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 judgment 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, BURR, THOMAS and RICH, JJ., concurred. Judgment of the County Court of Kings county affirmed, with costs App. Div.] Second Department, March, 1910. FREDERICK MAERCKER, Appellant, v. THE BROOKLYN HEIGHTS RAILROAD COMPANY, Respondent. Second Department, March 31, 1910. Railroad - negligence — injury to passenger thrown from running board - contributory negligence. A passenger on a street car who, knowing that it was approaching a curve, and that his signal to the conductor to stop was too late, got upon the running board, and was thrown off when the car, going at the rate of ten or twelve miles an hour, struck the curve with a shock insufficient to disturb passengers within the car, is guilty of contributory negligence which bars a recovery. HIRSCHBERG, P. J., dissented. APPEAL by the plaintiff, Frederick Maercker, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 20th day of March, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff's case on a trial at the Kings County Trial Term. James C. Cropsey [Rufus O. Catlin with him on the brief], for the appellant. D. A. Marsh [George D. Yeomans with him on the brief], for the respondent. WOODWARD, J.: The This is an action to recover for personal injuries alleged to have been sustained through the negligence of the defendant. plaintiff, a man of about sixty years of age, was a passenger upon the defendant's Grand street car on the night of the 28th of August, 1904, en route to his home, 379 South First street, Brooklyn. He had been making this same trip almost nightly for a considerable length of time, and he testifies that the car had been stopped, on his signal, at the near crossing of Hooper street, where he alighted, during a period of about three years. There is a curve at Hooper street, beginning at the near side and continuing beyond the farther side of the street, and the plaintiff testified that when about half a APP. DIV.-VOL. CXXXVII. 4 Second Department, March, 1910. [Vol. 137. block from Hooper street he attempted to attract the attention of the conductor for the purpose of signaling for the usual stop, but that he was at first unable to get recognition, but that he finally secured the attention of the conductor, and that the latter then rang the bell for the car to stop, but that the signal was given too late for the car, which was moving at the rate of ten or twelve miles an hour, to stop before reaching the curve at Hooper street. The plaintiff says that the car did not slacken its speed perceptibly upon the ringing of the bell, and that with the car moving at the rate of ten or twelve miles an hour he stepped down upon the running board of the open car on which he was riding and held on with his left hand, and that while standing in this position the car struck the curve on Hooper street with such violence that he was thrown from his position and sustained injuries for which he now seeks recovery. A witness called by the plaintiff corroborates the testimony of the plaintiff, and says that the car struck this curve with such violence that he was thrown over toward the side of the seat, and that another passenger was likewise disturbed. There is no evidence that the car was run with a degree of negligence which endangered any person sitting upon the seats; so far as appears, those who remained in their seats upon the car were not injured, or seriously threatened with injury; the most that can fairly be inferred from the evidence is that the car was swayed with some degree of violence, such as is incidental to the striking of a curve by a car under full headway, but which did not throw any one from his seat or endanger his safety, and while it may be that there was a question for the consideration of the jury in reference to the negligence of the defendant, quite a different question is presented upon the duty of the plaintiff to establish by a fair preponderance of evidence that he was himself free from negligence contributing to the accident. There is absolutely no evidence in the case which would warrant a jury in finding that the plaintiff would have been injured if he had remained inside of the car; there is no evidence that the car was swayed sufficiently by striking the curve to have thrown any one out of the car, even if he had been standing up, as in the case of Whitaker v. Staten Island M. R. R. Co. (72 App. Div. 468), nor is there any evidence to indicate that the motorman, as in the case last above cited, knew that the plaintiff had changed App. Div.] Second Department, March, 1910. his situation upon the car. All the evidence shows is that the car was swayed; that the plaintiff's witness, as is often the case, was thrown against the side of the car, and that a third person was also somewhat disturbed, and while the witness testifies that he had often ridden with the plaintiff and that he never experienced such a jerk at this point, he does not say that it was different from what he had experienced generally in riding upon the surface cars, and his evidence is to be understood in connection with his own and the plaintiff's testimony that the car had usually stopped on plaintiff's signal at the near side of the street, so that it would not be under any considerable headway in taking this particular curve. With these facts known to the plaintiff, realizing as he says he did that the signal had not been given in time to stop the car at the near side, and with the car moving at ten or twelve miles an hour, and show. ing no diminution in speed, he stepped down from a place of safety onto the running board, facing the front of the car and holding on with his left hand, and while in this position the car struck the curve and he was thrown off. It may be that if the motorman had seen him in this position while yet there was time to slacken the speed of the car before striking the curve, the original act of the plaintiff in getting upon the running board might not preclude him from recovering, but under the circumstances of this case, where there was no danger shown to one who remained upon the seats provided for the comfort and safety of passengers, no other conclusion is to be reasonably inferred than that the act of the plaintiff in getting upon the running board while the car was running at ten or twelve miles an hour, was a contributing and proximate cause of the injury which he sustained, and the learned court at Trial Term very properly granted defendant's motion for a nonsuit. The judgment appealed from should be affirmed, with costs. JENKS, BURR and CARR, JJ., concurred; HIRSCHBERG, P. J., dissented. Judgment affirmed, with costs. |