SEWELL, J.:

The question to be determined in this case is whether the plaintiff or the defendant is the owner of the boiler and engine referred to in the statement of facts submitted.

The defendant is, and for many years has been, the owner of certain premises situate on Twenty-fourth street near Third avenue in the borough of Brooklyn. The defendant leased the premises to George E. Lanigan for the term of four years and three months from the 1st day of February, 1895, with the privilege to Lanigan, at or before the termination of the lease, to remove from the premises any building or buildings he might have erected thereon. Prior to the expiration of the lease, Lanigan sold to Joseph L. Quesenbury wooden building which he had erected upon and made fast to the premises and used as a planing and molding mill. On the same day Quesenbury leased the premises of the defendant for the term of three years from May 1, 1899, agreeing to pay a yearly rent of $350 and all taxes and water rates as they became due. It was also provided in the lease that the premises were to be used by the lessee only for the ordinary business of a builder and of a planing and molding mill or other business of a like nature, and that up to the termination of the lease, the lessee might remove any building or buildings which he might have erected or found upon the premises; but that if the covenants, conditions and agreements binding upon him were not fully performed, then said building or buildings should remain and become a part of the estate of the lessor. The lessee also agreed not to assign the lease or let the premises without the consent of the lessor.

Quesenbury entered into possession of the premises under his lease on the 1st day of May, 1899, and sometime prior to January 1, 1899, affixed to the premises the boiler and engine in question for the purpose of furnishing power to turn the machinery installed and used by him in the planing and molding mill.

Quesenbury continued in the occupancy of the premises, and paid the rent to August 1, 1900, when he defaulted, and has ever since failed to pay the rent, taxes or water rates, or to perform any of the other conditions of the lease. On October eighteenth the defendant commenced summary proceedings against Quesenbury, and such proceedings were thereupon had therein that a final order was made on the twenty-third of October awarding to the defendant the delivery of the possession of the property for the non payment of the rent due, and directing the removal of the tenant from the premises. The warrant was issued and delivered to the city marshal October 30, 1900. On the following day an order was made adjudging Quesenbury a bankrupt. The plaintiff was appointed trustee of the estate of the bankrupt, and on the twenty-ninth of December the plaintiff, as such trustee, obtained an order from a judge of the District Court of the United States authorizing him to enter into a written agreement with the defendant for the hiring of the premises for the term of six months from November 1, 1900, at the agreed rent of $256.70. Thereafter, and on the 4th day of January, 1901, the plaintiff entered into a written lease with the defendant, whereby the defendant leased to the plaintiff, "not individually, but as trustee of the estate of Joseph L. Quesenbury, bankrupt," and the plaintiff hired from the defendant, the premises "together with the buildings thereon and the appurtenances, for the term of six months from the 1st day of November, 1900, at the fixed rental of $256.70." The plaintiff agreed in the lease to pay the rent therein specified, and "at the expiration of said term * * * (that he) will quit and surrender the premises hereby demised in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted, * * * and that he will not occupy or use said premises nor permit the same to be occupied or used for any purpose other than that of a planing and moulding mill or other business of like nature." The plaintiff continued in possession of the premises until the expiration of the lease on May 1, 1901, when he surrendered possession to the defendant.

It further appears by the agreed statement of facts that during the term "this plaintiff as such trustee sold and caused the removal of all the property then on said * * * bankrupt's estate, but did not sell or cause the removal of said boilers and engines, although making due claim against this defendant that the same were trade fixtures and that title thereto was fully vested in him as a part of the estate of said bankrupt."

It also appears that the "boilers and engines have not been removed or their position on said premises in any wise disturbed since they were affixed thereto by said Quesenbury prior to his defaulting in the payment of rent on August 1st, 1900."

It is not to be denied that as between landlord and tenant the placing of machinery or other fixtures by the tenant upon leased premises, for the purpose of trade or manufacture to be carried on by the tenant, does not make the property so affixed a part of the freehold, but it still remains personalty, so far as the right of removal is concerned. ( Massachusetts National Bank v. Shinn, 18 App. Div. 276; affd., 163 N.Y. 360.)

The right of a tenant to remove trade fixtures is conceded to him for reasons of public policy, and being in the nature of a privilege, it must be exercised before the expiration of the term, or before he quits possession. He cannot afterward, because the right of the fixture vests in the landlord at the same time as the right of possession of the landlord. ( Brooks v. Galster, 51 Barb. 199; Talbot v. Cruger, 151 N.Y. 117.)

I think that the issuing of the warrant for the removal of the tenant from the premises canceled the agreement for the use of the premises and annuled the relation of landlord and tenant. (Code Civ. Proc. § 2253.)

If, however, we assume that the unexercised right of removal extended to the plaintiff when he was appointed trustee of the tenant's estate, and that he then stood in the same situation as the tenant, it cannot be doubted that the taking of a new lease of the premises with the boiler and engine affixed thereto, without any reservation of a right to remove them, was a waiver of the privilege.

In Talbot v. Cruger ( supra), Judge GRAY, speaking of the effect of a new lease, said: "A tenant may remain in possession after the old lease has expired, but unless he reserves the right under the new lease to remove the fixtures upon the land, the right will be deemed to have been abandoned and they will become the property of the landlord."

In Loughran v. Ross ( 45 N.Y. 792) the court said: "If a tenant, having the right to remove fixtures erected by him on the demised premises, accepts a new lease of such premises, including the buildings, without reservation or mention of any claim to the buildings, and enters upon a new term thereunder, the right of removal is lost, notwithstanding his actual possession has been continuous. * * * Elementary writers are very well agreed that when a tenant continues in possession under a new lease or agreement, his right to remove fixtures is determined, and he is in the same situation as if the landlord, being seized of the land with the fixtures, had demised both to him."

It may also be observed that the new lease carried with it the buildings and all the fixtures on the premises; that it was an acknowledgment of the title of the plaintiff in both and estopped the plaintiff from controverting it.

I am, therefore, of the opinion that the defendant is the owner of the boiler and engine in question, and that judgment to that effect should be directed, with costs to the defendant.

GOODRICH, P.J., WOODWARD, HIRSCHBERG and JENKS, JJ., concurred.

Judgment for defendant on submitted case, with costs.