Melton v. Fullerton-Weaver Realty Co.

McLaughlin, J.: The defendant was the owner of certain real estate in the city of New York, including a building thereon. It desired to tear down the building for the purpose of erecting a new one, and to that end entered into the contract with the plaintiffs referred to in the opinion of Mr. Justice Laughlin. When the building had been partially demolished the defendant, claiming that the plaintiffs had violated the contract in not tearing down the building and removing the materials within the time specified, prevented further performance and did the work itself, or through another contractor. At the time the contract was terminated, a substantial portion of the building remained. This action was brought to recover damages for the value of the material which remains in the undemolished part of the building, as well as other material remaining on the premises — the claim being that defendant, by excluding plaintiffs, thereby converted such material to its own use. The case was tried and submitted to the jury on the theory that the building was, by the contract referred to, constructively severed from the realty and at once became personal property. I am unable to concur in this view. When the contract was made the building was real property and its character as such could not be changed except by an actual severance from the [527] land upon which it stood. The difference between the real and personal property exists not by virtue of an agreement, but by nature of the subject. Real estate cannot be changed into personalty merely by calling it such. The walls of a building, no matter of what composed, so long as they remain an integral part of the building, are real estate and it is beyond the power of parties interested, by agreement, to change them into personal property. (Ford v. Cobb, 20 N. Y. 344.) This was pointed out in Davis v. Bliss (187 N. Y. 77), the court saying: “ It doubtless is the rule that personal property may be so firmly attached to, or thoroughly and substantially made a part of the realty, that its character as personalty will not be preserved even by special agreement intended to accomplish that result. ” In People ex rel. Interborough R. T. Co. v. O'Donnel (202 N. Y. 313) the question presented was whether certain machinery and power houses were real property within the meaning of the Rapid Transit Act. The court held that the machinery was not, but that the power houses were, saying: “On the other hand these power houses were most substantial structures, composed in large measure of brick and stone and steel and iron. They were so constructed on the land that apparently they could only be removed by utter demolition. They were primarily and essentially real property and never had existence in any other character. They were so fundamentally real property that probably interested parties dealing with them could not, by express agreement, have given them any other character than that of real property.” In Western Union Telegraph Co. v. Burlington &. Southwestern Ry. Co. (11 Fed. Rep. 1) it was said that bricks which were built into the walls of a building, or shingles that form the roof, or stones that go into the foundation of a house cannot, even by agreement of the parties, be made to retain their character as personal property, for the obvious reason that they became so inseparably affixed to the realty as to be a part of it, independent of any question as to the intent of the parties. There are expressions in several opinions to the effect that [528] an agreement may constitute a constructive severance of growing timber, thereby changing it from real to personal property, but I have been unable to find any authority in this State with the possible exception of Warren v. Leland (2 Barb. 613) where that question has been squarely decided. Thus, Bank of Lansingburgh v. Crary (1 Barb. 542) and Lacustrine Fertilizer Co. v. Lake G. & F. Co. (82 N. Y. 476) state that growing grass or trees become personal property without an actual severance, merely by virtue of a sale of them by the owner of the land, but the point was not necessary to the decision in either case. In Warren v. Leland (supra) the court based its decision on the ground that growing trees became personalty merely by virtue of the contract of sale. But that decision was, to a certain extent, disapproved in Goodyear v. Vosburgh (57 Barb. 243) on the ground that the doctrine of constructive severance had nothing to do with the question decided. Green v. Armstrong (1 Den. 550) and Vorebeck v. Roe (50 Barb. 302) merely mention the doctrine of constructive severance of growing trees or grass, without expressing any approval In Lacustrine Fertilizer Co. v. Lake G. & F. Co. (supra) it was held that soil removed from the land of one person and placed on the land of another, with his consent, and without an intention on the part of the former to reclaim it, or an agreement authorizing him to remove it, becomes a part of the land of the latter. Authorities which hold that things of a personal nature, such as fixtures, etc., annexed to the freehold of a person other than the owner may, by agreement between him and the owner, retain their character as chattels, are not applicable, and this for the reason that the chattels in the cases to which the doctrine is applied were such originally, and never became a part of the land, at least to such an extent as to lose their identity. Here we have a building standing upon land concededly real estate, and I am unable to see upon what principle an agreement to tear it down and remove the materials of which it is composed can change it from real estate into personal property. If it does not, then the determination of the Appellate Term [529] and the judgment of the City Court should be reversed and a new trial ordered, with costs to appellant to abide event. Ingraham, P. J., and Scott, J., concurred; Laughlin and Clarke, J., dissented.