New-York tribune., 1902-02-02
MAyTELs AND CRATES ARE REAL ESTATE.
JUSTICE MLENNAN CLASSES THESE WITH GAS
PIPES. PLUMBING AND SIMILAR FIXTURES

JUSTICE MLENNAN CLASSES THESE WITH GAS
PIPES. PLUMBING AND SIMILAR FIXTURES.
In January. 1900 the firm of Andrews & Newell
of Syracuse, sold certain manteIs and gas CRATES
to a Mrs. Archibald, with the understanding that
she should pay for the in monthly install
ments. They were placed in a house occupied by
her In that city. and they made fast to the
freehold by screws and embedded IN cement. The
house owned by one Powers who had no
knowledge Of the transaction between the firm OF
Andrews & Newell and Mrs Archibald. The latter
occupied the house by virtue Of n contract which
she had made with the owner. whereby she was to
have deed for the house when paid for. BY the
terms Of the agreement she made with Andrews &
Newell the title to the mantes and CRATES was 10
remain in Andrews & Newell until those articles
paid for. Mrs. Archibald failed TO keep I'D
her payments to Powers. and also failed to pay
Andrews & Newell and in consequence Powers re-
covered possession Of the premises from her An
drews Newell then insisted that inasmuch as
Mrs. Archibald had Tot paid for the mantels and
CRATES according to the terms Of her contract with
them, they had the legal right TO their possession
and return. The owner, on the other hand insist
ed that the manner in which the articles
tached to the house made them a part the free
hold and constituted them real and his prop
erty, Notwithstanding the agreement betp zen Mrs
Archibald and Andrews & Newell. of which he had
knowledge
Andrews & Newell brought suit against Powell
To test the question in the Municipal Court of the
Powell
to the Onandaga County Court and lost. He ap-
pealed again to the Appellate Division in the
Fourth Department. and that tribunal has unan-
mously pronounced his contention correct and has
reversed the Judgments of the two lower courts
Justice McLennan in his opinion, lays down the
different tests which may be applied in cases of
such character between Vender and vendee;
mortgagor and mortgage and landlord and tenant
He quotes with approval the rule that Between
Eender and Vendee or mortgagOr and mortgage. It
has been held that fixtures, including a gas
ometer and apparatus for generating gas, would
pass with the house in which they in use but
not between tenant and landlord. If put in by the
tenant. The shelves, drawers and counter tables.
htted In store, pass with the realty. and
things which may be fixtures often become SO. or
been actually fitted for and applied the realty"
and that, Independent of any agreement to the
contrary gas piping, partitions, lead pipe, plumb
ing work, water closets and basins which
tached TO the house in the ordinary way. become
part Of the realty. Another test. the Judge states
while not controlling Is whether not the re
moval of the chatte would cause serious injury to
the realty.
In closing, Justice McLennan says: In the case
at bar, If the agreement which the plaintiff made
with Mrs. Archibald had been made with the
knowledge or consent of the defendant-owner or
II the manteis and CRATES had been placed in the
mouse with his knowledge and consent, and with
the intent that they should retain their character
as personal property. il is not doubted that such
~, and the defendant IL ne had refused to sur
render possession OF the after demand duly
made would be liable to the plaintiff for their
value"