Croxson v. Flynn Plumbing & Heating Co.

GIEGERICH, J. [1] If the plumbing fixtures supplied by the defendant had been of such character that, once affixed, they could not have been removed without substantial injury to the freehold, they would have become, upon installation, a part of the real property, and so subject to the plaintiff’s mortgage, which was then of record; and this would have been so, notwithstanding any agreement made between the vendor and vendee of the .fixtures with the intention of preserving their character as personal property after their physical annexation to the realty. Ford v. Cobb, 20 N. Y. 344; Tifft v. Horton, 53 N. Y. 377, 13 Am. Rep. 537; Davis v. Bliss, 187 N. Y. 77, 79 N. E. 851, 10 L. R. A. (N. S.) 458. The defendant, furnishing fixtures of that character, and yet seeking to retain a lien upon them, would be attempting to acquire an interest in the real property, and the record .of the prior mortgage upon that property would be notice to it. [2] The fixtures here in question, however, were of a different character, and whether they should be regarded, when affixed, as still retaining their character as chattels or as having become a part of the •real property to which they were annexed, might depend upon various considerations, and even upon the relations of the parties between whom the question arose. It was, at any rate, the proper subject of .an express agreement between the vendor and the vendee, and the chattel mortgage was such an agreement, and clearly shows that the parties intended the fixtures to retain their character as chattels, even [1095] after they were put in the building. Tifft v. Horton, supra; Fitzgibbons Boiler Co. v. Manhasset Realty Corp., 198 N. Y. 517, 92 N. E. 1084, reversing on dissenting opinion of Scott, J., 125 App. Div. 764, 766, 110 N. Y. Supp. 225. It follows, therefore, that since the defendant was merely contracting to supply certain chattels to the owner •of the freehold, and was not acquiring or attempting to acquire any interest in the land, the record of the existing mortgage upon the land was not notice to him. It is urged, however, that the chattel mortgage was void, as to the ■plaintiff, because when it was made the mortgagor had neither actual nor potential ownership of the chattels, and also because it was not filed until two months after it was made. However forcible these objections might be in a case proper for their application, they cannot prevail here. The plaintiff was chargeable with knowledge of the chattel mortgage, through the knowledge of her agent before the chattels were brought to the premises, or, at any rate before they were annexed thereto. She stood by and saw these chattels annexed to the realty under an agreement by virtue of which, as she knew, the vendor expected to retain a lien upon them. It seems to me impossible to hold that she can now be permitted to come into a court of equity and assert the superiority of her own lien, of which the defendant had no notice. There must be judgment for the defendant, with costs. Submit, ■with' proof of service, requests for findings in accordance with these views.