In Central Union Gas Co. v. Browning (supra) gas ranges connected to a building by the usual attachment to the gas service pipe were held to retain their character as personal property after such annexation and not to be subject to a real estate mortgage placed upon the premises.Summary of this case from Madfes v. Beverly Development Corp.
Argued December 8, 1913
Decided December 16, 1913
John A. Garver and Carl A. Mead for appellant. Clarence E. Thornall for respondent.
The action is for the alleged conversion of 100 gas ranges which the plaintiff installed in certain housekeeping apartments on One Hundred and Thirty-seventh street, New York city, under a contract between the plaintiff, which furnished the ranges, and the Ignatz Florio Company, owner of the premises, which acquired the same for the use of its tenants. There is some discussion in the briefs as to the nature of this contract, but we are satisfied that it is more than a mere lease with an option for purchase, as contended by appellant, and that it is a contract for a conditional sale. One or two excerpts from the contract will suffice to indicate the reasons for this view. The contract, after providing for a leasing and the rate of rental, further specifies that "Unless terminated in writing this agreement will be extended from year to year for a period of six years from the date hereof." And further that "It is understood and agreed that within one year from the date hereof the consumer has the option of purchasing from the company (the plaintiff) the appliances described, at the rate of $12.00 each; or when six consecutive yearly payments have been made aggregating four hundred and fifty dollars, the appliances above mentioned are to become the property of the consumer." That this contract is something more than a lease, and that it has the essential attributes of a contract for a conditional sale does not admit of doubt.
The conditional sales statute (Personal Property Law [Consolidated Laws, ch. 41; L. 1909, ch. 45], section 62, as amended in 1904) provides that "Every such contract for the conditional sale of any goods and chattels attached, or to be attached, to a building, shall be void as against subsequent bona fide purchasers or incumbrancers of the premises on which said building stands, and as to them the sale shall be deemed absolute, unless, on or before the date of the delivery of such goods or chattels at such building, such contract shall have been duly and properly filed and indexed," as directed. It is unnecessary to discuss what the rights of the plaintiff would be under this statute if the contract had been filed. The fact is that it was not filed, and, therefore, we have to decide the naked question whether the defendant, as a bona fide purchaser at a foreclosure sale of the premises in which the ranges were installed, acquired any title to the ranges. Upon the facts in the record we think he did not. According to our view of the evidence, these ranges were not so "attached" to the building that, as matter of law, they became part of it. They were connected with the building by the usual service gas pipe and a stovepipe flue. The one could be severed by simply unscrewing a coupling and the other by lifting it out of the aperture made for it. This is not such an attachment to the building as would give a mortgagee any right of ownership as against his mortgagor, and we do not see how a purchaser at a foreclosure sale could acquire any greater right. We think that these ranges, situated as they were, lost none of their characteristics as personal property. ( Cosgrove v. Troescher, 62 App. Div. 123; Fitzgibbons Boiler Co. v. Manhasset Realty Corp., 125 id. 764; reversed on dissenting opinion of SCOTT, J., 198 N.Y. 517.)
The judgment should be reversed and a new trial granted, with costs to abide the event.
CULLEN, Ch. J., HISCOCK, CHASE, COLLIN, CUDDEBACK and HOGAN, JJ., concur.