Kerby v. Clapp

WILLARD BARTLETT, J. In August, 1894, .the defendants purchased two houses (Nos. 179 and 181 Van Voorhis street, in the city of Brooklyn) from Charles J. Titus and wife. There were then in the houses four ranges and four heaters. These had been placed there by the plaintiff in April, 1894, at which time the premises were owned by one Annie Winter. The plaintiff did not sell them to her, however; nor does it appear in any manner how, if at all, she was connected with the transaction. He sold them to a man named Peter Van Varick, and the agreement of sale is contained in a written contract which provided, among other things, that the goods were not to be considered sold, nor was the title to pass, until the ranges and heaters were fully paid for. This contract was filed in the register’s office of Kings county, but not until after Annie Winter had sold the houses to Robert J. Titus. One of the defendants testified that, at the time he took the- deed for the houses, he did not know of any claim on the part of the plaintiff to these ranges and heaters. The plaintiff was not paid for the ranges and heaters, either by Peter Van Varick or anybody else. He made a demand upon the defendants for the return of the articles, which demand was not complied with, and thereupon he brought the present suit to recover damages for their conversion. We are quite satisfied with the conclusion of the referee that the ranges and heaters in question were not fixtures, and that the manner in which they were attached to the realty did not deprive them of their character as personal property. It is said that, if the ranges were detached from the water-pipe system of the houses, the water would flow from the connections, which is doubtless true, if the water were not previously turned off; but so it might be urged that 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. Insurance 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 [121] 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. 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 Í8-S4, c. 315, as amended by Laws 1892, c. 632, and Laws 1893,. c. 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. Furnace Co., 8 App. Div. 567, 40 N. Y. Supp. 925. For these reasons, as well as those stated by the referee in his opinion, I think the judgment should be affirmed. All concur.