#### John Schreyer, Appellant, *v.*John Jordan, Respondent.

(City Court of New York, General Term,

May, 1899.)

Fixtures — Buie between grantor and grantee.

Where the owner of a building fits up its first floor and basement as a saloon and, after selling the fixtures thereof to his tenant of. the saloon, regains possession of them upon the latter’s default in the payment of the purchase price, subsequent to the owner’s conveyance of the fee, the owner of the fee may, as against his grantee of the entire premises, remove the saloon fixtures as they are personal property and constitute no part of the freehold.

Appeal from judgment in favor of defendant, upon a verdict by the direction of. the court.' ■ ■

A. Thain, for appellant.

J. Hardy, for respondent.

*644Schuchman, J.

This action is brought by the plaintiff' to' recover .damages for an alleged illegal entry by the defendant, on May 1, 1896, upon premises known as No. 583 Tenth avenue, in • the city of New York, owned by the plaintiff, and for. removing and taking away from said premises the márble wainscoting in the toilet-room, and the water-closets, piping and fixtures in and about said toilet-room and entrance porch-in front of-said building, corn; monly known as a storm door. '

The plaintiff, the owner of said premises, claimed that said chattels were part of the freehold and were owned by and belonged to him. ■ The defendant, however,, claims that the same were personal property, put up 'for the purposes of trade, and, therefore, did not pass with the freehold conveyed by him to the plaintiff, and that he had the legal right to take them away.

The evidence adduced at the trial shows that the premises No. 583 Tenth avenue were formerly owned by the defendant,, who erected the present building thereon. After the building had been fully completed, the defendant found he could not- let the store in the building, and decided to fit it up for a saloon.

The defendant employed a cabinet-maker, who makes a specialty of fitting up saloons, to get up plans for fitting' up the store in said premises, as a saloon. He furnished the. plans, which included the marble wainscoting in the toilet-room and the water-closets, piping and other fixtures in and about the toilet-room, and the storm door in front of the entrance to the saloon, and the saloon was afterwards fitted up' in accordance, with these plans for the purpose of a saloon or liquor store. All said fixtures, including the water:closets and'wainscoting in the basement'and the storm, door, were constructed to fit the saloon business and were necessary thereto.

On or about May 1, 1895, the defendant leased to Alphonso MbHer and Hans Craft the store and basement of said building, No. 583 Tenth avenue, together with the following fixtures in said . store, viz., bar with hack bar, lunch case with mirrors, clock, chandeliers, brass foot-bar, and others, and also the following fixtures then in said basement, with four urinals, three water-closets and two wash-basins with plumbing complete, mosaic floor, one ladies* water-closet and two bowling alleys complete, for the term of nine years from May 1, 1895, which lease contained the following provisions : “And it. is hereby provided and agreed that the' parties of the second part are to purchase the aforésaid fixtures in the store *645and basement for the consideration of Five Thousand Dollars ($5,000), on or before the 1st day of May, 1897, and if the said parties of the second part shall not so purchase said fixtures, then, this lease shall at the option of the party of the first part, be terminated and become null and void.”

On July 17, 1895, the lessee surrendered.this lease to the. defendant. On August 1, 1895, the defendant leased the store and basement of said premises Mo. 583 Tenth avenue to John Mc-Manus, for the term of four years and five months from said date. On September 23, 1895, the defendant sold chattels and fixtures in .said store and basement to said John McManus, who executed to the defendant a chattel mortgage on said articles; conditioned to be void if'said McManus should pay $7,000 to the defendant on demand, otherwise to be an absolute transfer to the defendant.

This chattel mortgage was duly acknowledged and filed in the Mew York county register’s office on September 23, 1895, and covered the fixtures and chattels which are the subject of dispute herein.

On October 29, 1895, the defendant conveyed said premises Mo. 583 Tenth avenue to the plaintiff by a deed dated on that day and recorded on October 31, 1895, free from all incumbrance except the mortgage of $25,000, a lease of the upper part of the building from October 1, 1894, a lease of the store and basement for four years and five months from August 1, 1895.

McManus, the tenant of the store and basement, continued in possession of said store and basement, and of the chattels and fixtures therein, until May 1, 1896, when the defendant, having demanded payment of the mortgage, and McManus not being able to pay the same, surrendered possession to the defendant, of the property mentioned in the mortgage, the defendant accepted possession and caused the fixtures to be taken out and carried away.

Adjudications have well settled the rule of law, that chattels may be annexed to the real estate and still retain their character as personal property. The principal test is the intention of the parties at the time of making the annexation, and -.incidentally thereto the use or purpose of the application of the chattels -is to be considered, and if the intention is, that they shall not, by annexation, become a part of the freehold, as a general rule they will not; except in those articles which are not themselves annexed, but are deemed to be of the freehold from their use and character, where the chattels could not be removed without practically destroying *646it, or. where it, or any part of it, is essential to the support of the freehold. .

Thus it has been held that when machinery was affixed .to the freehold, which constituted a mill property, that the character of the machinery -had' changed from personal property to realty. Duffus v. Howard Furnace Co., 8 App. Div. 567; Tifft v. Horton, 53 N. Y. 380; Voorhees v. McGinnis, 48 id. 278; Sheldon v. Edwards, 35 id. 282; Massachusetts Nat. Bank v. Shinn, 18 App. Div. 276, 279; Sisson v. Hibbard, 75 N. Y. 544; Tyson v. Post, 108 id. 221, 227; Ford v. Cobb, 20 id. 344; Union Stone Works v. Klingman, 20 App. Div. 449; Farrar v. Chauffetete, 5 Den. 527; McRea v. Central National Bank of Troy, 66 N. Y. 489, 497; Cooper v. Harvey, 41 N. Y. St. Repr. 594.

We think that the fixtures appertaining to a saloon business are not to constitute the freehold as a saloon property. The premises Ho. 583 Tenth avenue constituted the dwelling above the store, and the store and basement were to be used for store purposes.

The freehold existed independent of the saloon fixtures. Therefore, we hold with the trial judge that the fixtures retained their character as personal property.

Judgment appealed from affirmed, with costs.

MoCabthy, J., concurs.

Judgment affirmed, with costs.