#### Max Vogel, Appellant, *v.*Oliver M. Farrand, Impleaded with Charles S. Parsons, Respondent.

(Supreme Court, Appellate Term,

January, 1899.)

Mechanic’s lien — Removable mirrors, affixed by a contractor with the owner to the premises of a tenant and at his request, are personal property. >

Mirrors which can be slid out of their frames, these latter being fastened to finished walls by iron brackets, screwed into easily removable wooden plugs, three-quarters of an inch wide driven into the finished walls to a depth of two and one-half inches, when thus placed by a contractor with the owner in a store of his tenant for years, are personal property, and as such cannot be made the subject of a mechanic’s lien (chapter 418 of the Laws of 1897), erforcible against the tenant, although the contractor alleges that he supplied them to the owner “ with the knowledge and consent and at the request ” of the tenant.

*131Appeal by the plaintiff from a judgment of the Municipal Court of the City of ¡New York, borough of Manhattan, ninth district, rendered in his favor against the defendant Parsons only, and dismissing the complaint against the defendant Farrand, upon a trial had before the court without a jury.

The nature of the action and the material facts are stated in the opinion. ;

Samuel D. Levy, for appellant.

Eugene F. Daly, for respondent.

Giegerich, J.

This action was brought to enforce a mechanic’s lien filed against the interest of the defendant Farrand in the premises known as No. 3 Maiden lane in the Borough of Manhattan, for certain plate glass mirrors and work thereon, alleged to have been supplied under a contract with the defendant Parsons and “ with the knowledge and consent, and at the request ” of the defendant Farrand.

There was a conflict of testimony as to whether the defendant Farrand had made an absolute promise to pay plaintiff for the mirrors and the work incident thereto, but the trial justice found, as is assumed from the judgment, that the evidence did not support such contention, and in the absence of the usual grounds for reversal upon the facts, we see no reason for disturbing his conclusions in that respect.

The defendant Farrand was the lessee of the said building for the term of five years from the 1st day of May, 1897, and where during the period in question he was engaged in business as a jeweler.

From the uncontradicted proof it appears that the mirrors were put in frames upon grooves which admitted of their sliding out, such frames being fastened to the walls, which theretofore had been finished; that the frames were affixed to the walls in the following manner, viz.: a hole was first drilled in the wall to the depth of two and one-half inches and about three-quarters of an inch in width; the hole was then plugged with wood into which an iron bracket or “ holdfast ” was driven, and the latter was in turn secured to the frame by a screw; that the result of the removal of the frames would be to leave the hole in the wall, and but for *132this the construction of the frames had no material effect upon the building itself.

The court below in giving judgment in favor of the plaintiff against the defendant Parsons, and dismissing the complaint as to the defendant Farr and, decided that the mirrors were personal property and not the subject of a mechanic’s lien, and, in my opinion, such determination is amply supported by the evidence as well as by the authorities.

According to the Lien Law a *“*contractor, subcontractor, laborer or materialman, who performs labor or furnishes materials ” for the “ erection, alteration or repair of any structure upon, connected with, or beneath the surface of any real property, and any work done upon such property, or material furnished for its permanent improvement ” * * * *“*with the consent or at the request of the owner thereof, or of his agent, contractor or subcontractor, shall have a lien for the principal and interest of the value, or the agreed price, of such-labor or materials upon the real property improved or to be improved and upon such improvement.” Laws of 1897, chap. 418, §§ 2, 3. Under this and preceding statutes containing similar provisions, it has been held that the article or object upon which the lien is claimed must be attached to and form part of the realty. Ward v. Kilpatrick, 85 N. Y. 413, 418; Snyder’s Anno. Mechanics’ Lien Law (3d ed.), 16-19, and citations; Union Stove Works v. Klingman, 20 App. Div. 449, 451.

In the case first cited, Finch, L, writing the opinion, said (p. 4l8): “ Labor upon the building, materials used in its construction are the test of the lienor’s right. In other words, the work and the materials both in fact and in intention must have become part and parcel of the building itself. The inquiry approaches so nearly the doctrine of fixtures as to make the decisions in that respect authoritative, and the necessary guides to our conclusion.”

In the present case, the mirrors were not set into the walls, hut were put up some time after the building had been erected, and were supported, as seen, by screws attached to a bracket or *“*hold-fast ” driven through a wooden plug into the walls, and which could easily bé removed without injury to the walls. ' Applying the foregoing rules to the facts, it is clear that the mirrors were mere furniture, or chattels, and not appurtenant to the building. McKeage v. Hanover Fire Ins. Co., 81 N. Y. 38, 40.

The ease of Ward v. Kilpatrick, *supra,*is distinguishable from the one at bár. There, the mirror frames were actually annexed *133to the realty “ during the process of building and as part of that process,” while, in the present case, the mirrors were put in wooden frames, from which they were readily removable, and which frames, as noted, were not part of the realty.

It follows from these views that the decision of the trial justice was in all respects correct, and that, therefore, the judgment should be affirmed, with costs.

Beekman, P. J., and Gildersleeve, J., concur.

Judgment affirmed, with costs.