McGinn v. New York & Queens Electric Light & Power Co.

Order modified by granting plaintiff’s motion to the extent of striking from the answer of defendant New York and Queens Electric Light and Power Company the first separate defense, and in all other respects denying the motion, and as so modified affirmed, without costs. Upon the order as modified, the judgment is reversed, with costs to appellant to abide the event. The issue here involves the nature of chattels claimed by the plaintiff as the owner of real estate purchased by her at a sale held pursuant to a judgment of foreclosure of a mortgage, which mortgage by its terms included “ articles of personal property used in the operation of said premises.” Defendant claims under a bill of sale executed to it by the former owner prior to the foreclosure of the mortgage. The issue may involve the maimer in which the meters were attached and annexed to the realty, including the circumstances, conditions, customs and various other elements which enter into a question of fact. (Madfes v. Beverly Development Corp., 251 N. Y. 12; Central Union Gas Co. v. Browning, 210 id. 10; Jennings v. Vahey, 183 Mass. 47; Hook v. Bolton, 199 id. 244.) It was error to strike out the second affirmative defense to the effect that the plaintiff was not the real party in interest. (Henderson v. Park Central Motors Service, Inc., 225 App. Div. 788.) Lazansky, P. J., Young, Hagarty, Tompkins and Davis, JJ., concur.