#### Jacob Hirsch, Plaintiff, *v.*The Graves Elevator Co., Defendant.

(Supreme Court, New York Special Term,

August, 1898.)

1. Fixtures — The question whether an elevator is a fixture will not be decided on a motion.

The question whether a subsequent mortgagee of a building and its improvements, including two elevators, has title to the elevators, as fixtures, as against a corporation which installed them under a written contract with the mortgagor and owner of the building that it should retain the title to the elevators until he had fully paid for them, will not be decided upon a motion by the mortgagee for an injunction restraining the corporation from its threatened removal of the elevators.

*2.*Conditional sale — Semble, that the contract need not he recorded, where the thing sold is not in existence. •

Semble, that the statute requiring the filing of a contract of conditional sale (Laws of 1897, chap. 418, art. IX, §§ 112, 113), in order to prevent its being void against a subsequent mortgagee in good faith, does not apply to elevators which were not in existence when the contract was made, as the sale could not, in the words of the statute,-be “ accompanied by immediate delivery ”.

Action for an injunction/

Kurzman *&*Frankenheimer, for plaintiff.

Greene *&*Johnson, for defendant.

*473Cohen, J.

In October, 1895, the defendant, a domestic corporation, with its offices at Rochester, agreed in writing with Isidor Hoffstadt, to erect and finish on or before January 1, 1896, two elevators, passenger and freight, in his seven-story business building, 244 and 246 West Twenty-third street, for $3,500', payable one-half in cash upon completion, and the balance by note payable in three months thereafter. The contract also provided “ that the said elevators and attachments, appurtenances and machinery connected therewith, * * * shall be and remain personal property, and that the title thereto shall remain in the Graves Elevator Company until the same shall be fully paid for.” The payments were not made as agreed,-and, there is yet unpaid the sum of $1,200. Prior to May 12, 1898, there was a first mortgage of $100,000' and a second mortgage upon the premises. On that day the owner executed a third mortgage for $6,861.24 to. the plaintiff, which mortgage expressly covered the buildings and improvements on the premises, including the elevators in question, which had been erected and operated as agreed upon. On May 18th Hoffstadt made, a general assignment. The mortgage of the plaintiff becoming due, he began an action to foreclose it, and the premises are advertised for sale during the coming month. Hpon the threats of the defendant to remove the elevators, the plaintiff began this action for a permanent injunction, and seeks now to continue a prehminary' injunction, issued by Mr. Justice Dugro, until the final determination of the action, alleging destruction of part of the building and irreparable damage in that the leases of the tenants in the building provide for the use of the elevators as a means of egress and ingress, and that any interference with the elevators will cause the cancellation of these leases, loss of rents, etc; The plaintiff’s counsel contends that owing to the character of the building1 in suit and the use to which these elevators are put,, and the manner in which they are affixed, no agreement between the manufacturers and the vendee can malee them aught but fixtures and a part of the realty. But the intent, here so unequivocally expressed, is so large a factor in determining whether articles are fixtures or personalty that the authorities, do not seem to support his position. Tifft v. Horton, 53 N. Y. 377; Duffus v. Howard Furnace Co., 8 App. Div. 567; Union Stove Works v. Klingman, 20 id. 449. That an agreement, however, may not be controlling, see Voorhees v. McGinnis, 48 N. Y. 278, at p. 287. It is also contended by the plaintiff that since the contract between Hoffstadt- and the elevator com*474pany was a conditional sale, the failure by the vendor to file the contract, in the county clerk’s office, as required by statute (Laws of 1897, chap, 418, art. IX, §§ 112 and 113), renders it absolutely void as against this plaintiff, a subsequent mortgagee in good faith: Sayles v. National Water Purifying Co., 16 N. Y. Supp. 555, at p. 558. In an action in which this1 same elevator company was a party, .and the same language as here employed was'under consideration, the statute was held not to appjy, as the elevator was not in existence when the contract was madel; and, therefore, the contract for the conditional sale of the elevator could not be, in the 'language of the statute, “ accompanied by immediate delivery,” Graves Elevator Co. v. Callanan, 11 App. Div. 301. See, also, Hassam v. Griffin, 18 Johns. 47; Parsons v. Loucks, 48 N. Y. 17; Warren Chemical *&*Manufacturing Co. v. Holbrook, 118 id. 586. The court is' not unmindful that the Callanan opinion rests on facts, . of more or less importance, differing from those here existing, and that many and real distinctions may be*drawn between that case and this one under consideration. There is, however, considerable conflict presented by the affidavits as tó how these elevators are constructed, and the effect upon the building consequent upon their removal. There is also' a serious dispute as to the good faith of the plaintiff ás mortgagee. It is not satisfactory to determine these issues on affidavits; they should be disposed, of -upon the trial. Manning v. Ogden,70 Hun, 399. To vacate this injunction would certainly give the defendant 'the opportunity to remove the elevators. Thereupon many leases might be canceled, other and- expensive litigation might arise and grave and far-reaching injury might result. To continue it simply delays .the defendant in recovering the balance due upon its contract. If, therefore, the plaintiff will furnish an undertaking in the sum of $1,500, conditioned upon the payment of the $1,200 due and interest and costs if the plaintiff does not succeed, in this action, the injunction will be continued; otherwise the restraint upon the elevator company will be removed.

Ordered accordingly.