August Term, 1897.
George Bell and Benjamin Patterson, for the appellants.
Frank M. Avery, for the respondent.
The defendant Klingman purchased of the plaintiff sixty-eight Astor ranges, boilers and attachments, and four hot-air furnaces with hot-air pipes, smoke pipes and registers, to be used in a building which he was erecting. For such material, and the labor necessary in setting the same, the defendant became indebted to the plaintiff in the sum of $1,991.64, and the latter caused a mechanic's lien therefor to be filed within the time provided by statute. This suit was brought to foreclose such lien and it resulted in a judgment in favor of the plaintiff.
On this review the defendant urges (1) that the verification of plaintiff's notice of lien was not in conformity with the statute, and that, therefore, a valid lien was not created; (2) that the ranges were not permanently affixed to the freehold, and, therefore, not within the scope of the statute which authorizes a lien "for materials used in erecting, altering or repairing any house," etc.; and (3) that the plaintiff failed to show a performance of the contract on its part.
The lien was signed "Union Stove Works, by Newton H. Burr, agent," and was verified by the affidavit of the agent. The Mechanics' Lien Act provides for an execution and verification of the notice of lien by an agent (Laws 1885, chap. 342, § 4), and this verification was in the language of the statute. The appellant, conceding that the verification is in the precise words of the statute, urges that it is not within its spirit because it does not appear therefrom whether the verification was based upon the knowledge of the agent or upon information and belief. We regard this question as no longer open for discussion. It has been frequently held that a verification following the exact language of the statute is sufficient. ( Schwartz v. Allen, 7 N.Y. Supp. 5; Moore v. McLaughlin, 66 Hun, 133; Staubsandt v. Lennon, 22 N.Y. Supp. 544, 545; 3 Misc. Rep. 90; affd., 142 N.Y. 666; Ward v. Kilpatrick, 85 id. 413, 417; Kealey v. Murray, 61 Hun, 619; see, for opinion, S.C., 15 N Y Supp. 403; Boyd v. Bassett, 16 id. 10, 11.)
We agree with the trial court that the labor performed in setting the furnaces and ranges and the furnishing of such furnaces and ranges with the necessary pipes and appurtenances constituted labor performed and materials furnished in the erection of houses, within the meaning of the statute. The buildings for which these materials were furnished, and on which the labor for which recovery was had was performed, were four five-story flats situated in the city of New York. They were built by the defendant for the purposes of sale, and they were subsequently sold, the furnaces and ranges passing into the possession of the purchaser as part of the structure. The furnaces were set in the cellars of the houses, and connected with the chimneys by stove pipes, and with the buildings by hot-air pipes running through the houses and to the different floors. The hot-air pipes, the furnishing of which constituted part of the entire contract, which included hot-air furnaces, Astor ranges, boilers and attachments, and the value of which is included in the recovery in this action, were put in by the plaintiff while the buildings were in process of construction, and while the partitions were being built. They ran to registers on the different floors, and where the pipes were built into the partition the plaintiff furnished and put in iron, lath and tin. The ranges were equipped with warming closets, water backs, boilers, pipes, tubes and couplings, and were set into position on hearths provided for that purpose, and were connected with the chimneys by a smoke pipe; they were also connected with the water pipes running through the buildings by iron pipe connections screwed to the boilers. While it is true that some portion of the material, for which recovery has been had, could have been removed without difficulty, notably the ranges, the object of the erection of the buildings and the circumstances surrounding their purchase, and their annexation to the freehold, are sufficient to support the conclusion that it was the intent of the parties that they should be annexed to the realty and pass as fixtures. It is the general rule that fixtures of this character, whether actually or constructively annexed to the freehold, pass by conveyance or mortgage where there is nothing to indicate a contrary intention. ( Pratt v. Baker, 92 Hun, 331; Grosz v. Jackson, 6 Daly, 463; Voorhees v. McGinnis, 48 N.Y. 278, 282; Ward v. Kilpatrick, 85 id. 413; Watts-Campbell Co. v. Yuengling, 125 id. 1; Buckley v. Buckley, 11 Barb. 43, 63; In re Eureka Mower Co., 86 Hun, 309, 312; McRea v. Cent. Nat. Bank, 66 N.Y. 489; Quimby v. Sloan, 2 E.D. Smith, 594.)
The cases cited by the appellant ( Duffus v. Howard Furnace Co., 8 App. Div. 567, and Kerby v. Clapp, 15 id. 37) are not in point. In the Duffus case the furnaces, and in the Kerby case the ranges and heaters, were sold under a contract of conditional sale, which expressly provided that the property should remain the property of the seller until paid for. The only evidence of the intent of the parties was furnished by the agreement itself, and from that it appeared that both the vendor and vendee elected to treat and hold the articles as personal property even after they were annexed to the building.
The appellant also contends that the plaintiff did not do the work in the best manner, not using the best material, and not leaving the furnaces in a thorough working condition, as provided by its contract. Evidence was offered tending to show that the ranges smoked so badly that the apartments were frequently filled with smoke, causing the tenants to vacate the premises; that the water backs were defective; that the offsets on the ranges were not of proper construction, and the setting of the furnaces was faulty. The plaintiff attempted to meet these charges of faulty construction by a description of the work performed, and experts were called by both the plaintiff and the defendant. The plaintiff's experts testified that the construction was proper, usual and effective, while the defendant's experts presented a contrary view. Thus was presented a question of fact, which the learned trial court found, and, as we think rightly, in favor of the plaintiff.
The judgment should be affirmed, with costs.
VAN BRUNT, P.J., RUMSEY, PATTERSON and O'BRIEN, JJ., concurred.
Judgment affirmed, with costs.