#### J. Frederic Andrews, App’lt, *v.*The Day Button Company, Resp’t.

*(Supreme Court, General Term, Second Department,*

*Filed February 10, 1890.)*

Fixtures—As between landlord and tenant.

Plaintiff leased a factory, engine, etc., to a corporation. The engine being in a dangerous condition negotiations for the removal thereof and substitution of a new one were entered into, but plaintiff refused to contribute to the expense, or to consent to the substitution unless the new engine should belong to him. The corporation refused to consent to this, but subsequently made the change. *Sold,*that the tenant had the right to make the substitution; that as there was no intention to make the new engine real estate, and it could be readily removed without injury to the building, it did not become a fixture.

Appeal from judgment dismissing complaint

Action to restrain defendant from removing an engine.

By indenture of lease, dated March 26, 1886, the plaintiff let ■certain factory buildings, engine, shaftings, etc., and land at Astoria, *Long*Island, to the Fox Changeable Button Company for the term of five years. Within a few days after March 26, 1886, the name of the lessee was changed to that of the Specialty Button Company.

Shortly after the Specialty Button Company entered into possession of the demised premises, it found that the old engine mentioned in the lease was dangerous to life and limb, and was so constructed as to be useless for the purposes of the business of the corporation. Mr. Gordon, the secretary of the company, thereupon had a conversation with the plaintiff in relation to the removal of the old engine and the substitution of a new one therefor.

Plaintiff refused to contribute toward the expense thereof, but finally wrote that he had no objection to the change, provided the new engine should belong to him. This the company refused to agree to. Subsequently the company removed the old engine and put it carefully away in an outhouse prepared for it, and the new engine was placed on the old foundation, attached to an iron plate thereon by nuts and screws.

Prior to the expiration of the lease, the property of the Specialty Button Company, including the engine and its appurtenances, was sold under an execution issued to the sheriff of Queens county, and upon the sale Mr. Siedler became the purchaser. Subsequently Mr. Siedler sold the engine to defendant. While the lease was still outstanding, the defendant entered into possession *549•of the demised premises and paid rent to the plaintiff. When the defendant attempted to remove the new engine this action was brought to restrain it from so doing.

*Michael H. Oardozo,*for app’lt; *Gibson Putzel,*for resp’t

Barnard, P. J.

The evidence sustains the finding that the new engine was put into the place of the old one without any agreement that the new one should belong to the landlord. The landlord was applied to to put in the new engine himself and refused. He was requested to coutribute to the expense and he refused that He offered to consent to the lessee’s making the change upon the condition that the engine should belong to him. There was no assent to this and the lessee put in the engine on the old foundation and.removed the old engine. Although the tenant put in the new engine after he received a letter containing this condition the evidence is plain and abundant that the tenant never accepted this condition, but exercised such right in respect to the change as he had as a tenant hiring manufacturing premises for use as such. A tenant has the right to erect a new building on the rest of the demised premises and to remove the old from it so as to permit this improvement without waste. *Winship*v. *Pitts,*3 Paige Ch., 259. A building erected for the purpose of trade or manufacture may be removed by the tenant *Ombony*v. *Jones,*19 N. Y., 234. The tenant may put in an engine and remove it at the end of the term. *Kelsey*v. *Durkee,*33 Barb., 410. The tenant may remove a chimney and the machinery put in for the purposes of trade. 2 Revised Statutes, 24, 2d ed.

The title to the new engine was never therefore in the landlord.

There is no reason to distinguish this case from those cited, because the buildings or engine was put in a vacant place and was. not substituted for another similar structure or implement of trade. Admit that the tenant had the right to put up a new foundation and place an engine upon it and connect it with the mill, he may substitute a new article for a worn out one and remove a dangerous engine and put in a safe one in its place, always subject to the condition that the same could be put in and taken out readily. The proof is clear in this case that the engine could be removed without injury to the building and that fact is so found. There was no intention to make the new engine real estate, and that fact is found and the evidence sustains the finding.

The clause in the lease that the tenant would make no alterations in the premises is not material to the question. The tenant’s rights depended in all cases upon the fact that the article annexed should not materially injure or affect the real estate, and that the removal can be made without any injury therefrom.

The judgment should, therefore, be affirmed, with costs.

Dtkman and Pratt, JJ., concur.