Opinion
November, 1909.
Henry A. Rubino, for appellant.
Maurice Goodman (David Steinhardt, of counsel), for respondent.
The plaintiff leased a series of rooms and a corridor in an office building belonging to the defendant for the term of one year from May 1, 1908. The lease contained a clause providing as follows: "Said lessee shall quit and surrender said premises at the end of said term in as good condition as the reasonable use thereof will permit, and shall not make any alterations, additions or improvements in said premises without the written consent of said lessor; and all alterations, additions or improvements which may be made by either of the parties hereto upon the premises, except movable office furniture put in at the expense of the lessee, shall be the property of the said lessor, and shall remain upon and be surrendered with the premises as part thereof at the termination of this lease, without disturbance, molestation or injury."
The rooms were divided by permanent partitions, but the plaintiff desired to subdivide the space which it had rented in a different manner. For this purpose the plaintiff erected a number of partitions which the witnesses describe as "sectional," "interchangeable" and "movable." At the expiration of the lease, the lessee claimed that these partitions remained its property.
It appears that, when these partitions were put in place, it became necessary to remove some of the permanent partitions; and, in April, 1908, the plaintiff agreed that in consideration of permission to remove the permanent partitions it would "restore at its own cost other partitions or material which they may remove to its original condition, after having obtained the written consent of the Pittsburgh Life Trust Company, or its agents, on request, at least two weeks before termination of the existing lease of the premises or any extension or modification thereof." The plaintiff thereafter removed the permanent partitions and erected the temporary partitions. These did not extend to the ceiling and were apparently rather lightly nailed to the floor and walls. At the termination of the lease the permanent partitions were replaced, the sectional partitions were taken up, and the holes left by the nails filled in.
These sectional partitions were put in for the benefit of the lessee's business and are practically trade fixtures and cannot be considered as "fixtures" to the real estate in a technical sense. The word "improvements" alone would also be insufficient to include these partitions, although it is of wider significance than "fixtures;" for they were not so connected with the premises that they could fairly be considered to have been erected for the benefit of the premises. Webber v. Franklin Brewing Co., 123 A.D. 465. The sole serious question in this case is whether the words, "except movable office furniture," enlarge the meaning of the words "alterations, additions or improvements" sufficiently to include these partitions. Obviously, the exception is meaningless unless we give the words, "alterations, additions or improvements" a wider significance than they usually possess; but, even though we give them the widest possible significance, they could not reasonably include such "movable office furniture" as desks, chairs and bookcases. Therefore, the words "movable office furniture" must also be given an interpretation so wide that, conceivably, they might be included in the larger words unless specifically excluded. It seems to me that, when we apply these considerations to the interpretation of the clause in question, we must hold that even office partitions are to be considered "movable office furniture," if the parties never intended them to remain in their position but contemplated that during or at the end of the term they should be removed. The test in all cases is whether the parties could reasonably have considered them as annexed to the building. If the parties could not have reasonably intended such an annexation, then, even though they are held down by nails, they still remain "movable."
Applying this test, we have held in the case of Bigalke Eckert Company v. Wm. Knabe Manufacturing Company ( ante, p. 29) that partitions of a similar type were not "movable office furniture," within the meaning of the exception in a clause of a lease reading like the one now in question. In that case some of the partitions extended to the ceiling, and they were apparently erected in a very substantial manner because the work of installation occupied two weeks. Under those circumstances we felt constrained to hold that the parties did not contemplate a condition so temporary in its nature that the partitions still retained their original movable character. In this case, however, there is not only less evidence of any intention to make a permanent annexation, because there is no testimony that the partitions required much labor to erect and the partitions were lower and not attached to the ceiling, but there is affirmative evidence that the parties contemplated no permanent annexation. The lessor required the restoration of the premises to their original condition, and the lessee has complied with that requirement. Under these circumstances we cannot hold that these partitions were an "improvement" within the meaning of the lease, but are constrained to hold that they fall within the express exception.
The judgment should, therefore, be affirmed, with costs.
GILDERSLEEVE and SEABURY, JJ., concur.
Judgment affirmed, with costs.