75 N.Y.S. 93 | N.Y. App. Div. | 1902
Lead Opinion
This is a replevin action to recover a storm house, an iron awning, two urinals, two water closets and twenty feet of oak partition, which were erected upon or attached to the building known as Mo. 549 Hudson street in the city of Mew York, by lessees of the premises.
The plaintiffs in their complaint base their claim of title on a chattel mortgage executed to them by Anna Mahoney on the 10th day of September,' 1897, to secure her promissory note. The defendant in his answer bases his claim.-of title upon a deed of the premises executed to him on the 19th day of December, 1895, pursuant to a judgment of foreclosure, prior to which time those chattels had been attached to the freehold. At the same time that the chattel mortgage was executed, or prior thereto, but on- the same day, the defendant executed a lease of the premises to the plaintiffs’ mortgagor for the term of three years seven months and fifteen days from the 15th day of September, 1897. This lease makes no reservation of any existing right on the part of the tenant to remove these alleged trade fixtures. The chattel mortgage also covered the lease.
It was not shown whether or not the first lease was cut off by the foreclosure under which the defendant obtained title, but it appears that shortly thereafter the defendant leased the premises to said last-mentioned firm, and upon its dissolution Mahoney succeeded to the rights of the firm and obtained another lease from the defendant for the term of five years from May 1, 1896. Whether he made any reservation of his rights to the property in this lease or otherwise does not appear, but no claim was made upon the trial or is urged here that if the rights of the mortgagees survived the purchase by the defendant they were cut off by this lease.
Mahoney subsequently erected the awning with moneys advanced by the plaintiffs, and thereupon, on the sixteenth day of May, he executed to them a new chattel mortgage covering the property in question and more, and also the lease, to secure the original and this last indebtedness. The plaintiffs foreclosed this chattel mortgage, and said Mahoney’s wife, Anna Mahoney, purchased the property on the foreclosure sale on the 10th day of September, 1897, and thereupon, apparently to secure the entire purchase price, executed the chattel mortgage upon which the complaint is based.
It appears that at about the time of said purchase of the property by Anna Mahoney, her husband was dispossessed by defendant for the non-payment of rent. Mahoney’s testimony with reference to
The case seems to have been tried without much regard to the pleadings, and the plaintiffs were permitted to trace their title without objection on that ground. But the record does not disclose that the defendant made any claim of title other than by virtue of his deed. It appears, ’ however, that at the close of the evidence, in answering the motion made by plaintiffs’ counsel for the direction of . a verdict, the defendant’s counsel asserted that, under the general rule, if the tenant accepted a new lease without removing the fixtures or reserving the light to do so, the right is lost and the fixtures become a part of the realty; but he made his motion for a dismissal of the complaint solely upon the ground that the fixtures were attached at the time of the defendant’s purchase.
The articles in question were attached to the premises as trade fixtures. They constituted part of the saloon fixtures, essential to ■properly equip the leased premises for the accommodation of the patrons of the lessee. It does not appear whether the mortgage was executed before they were attached ; but the fair inference is that their sale, annexation to the freehold and the mortgage constituted one transaction. In these circumstances, the law presumes
When the defendant obtained title to the premises, the lease under which the plaintiffs held their mortgage had not expired, unless it was terminated by the decree in foreclosure. Even if it were so terminated, the rights of the mortgagees survived, at least for a reasonable time, to enable them to remove their property. (London & Westminster Loan c& Discount Co. v. Drake, 6 C. B. [N. S.] 798; Saint v. Pilley, L. R. 10 Exch. Cas. 137; Updegraff v. Lesem, 62 Pac. Rep. 342; Royce v. Latshaw, Id. 627; Alberson v. Elk Creek Gold-Miming Co., 65 id. 978; 1 McAdam Landl. & Ten. [3d ed.) 716; Lewis v. Ocean Navigation & Pier Co., 125 N. Y. 341.) It thus appears that the only claim of title asserted by the defendant in his answer and upon the trial cannot be sustained.
Whether facts existed which excuse the plaintiffs from removing the fixtures within such reasonable time, does not definitely appear; but this might be inferred from the defendant’s subsequently allowing the removal of most of the property covered by the mortgage ■ and purchasing part without asserting any other claim of title. Moreover, the defendant having made no claim of title on account of the plaintiffs’ failure in this regard, they were not called upon to prove facts constituting a waiver or estoppel on the part of the defendant.
The appellant now contends that by accepting the new lease without removing this property, or reserving the right so to do, Anna Mahoney and these plaintiffs, her mortgagees, forever lost the right to remove the same. We think it may safely be stated that the rule of law invoked is one not well understood by landlords and tenants, and that new leases are generally drawn without reserving such rights.- The law does not favor forfeitures. In such cases it lays hold of slight evidence to work a waiver or estoppel. (Landon
. If, however, notwithstanding these facts and the condition of- the .record, the defendant still be in a position to assert this claim, we think his contention cannot be sustained. The property in question consisted of ordinary trade fixtures, as distinguished from fixtures ■which are distinctively realty. The oak partition was only séven feet high, secured to the wall by iron holdfasts three and a half inches long, to ivhich it was screwed, and nailed to the floor. It was •placed in a room for the purpose of shutting off and dividing the water closets. The storm house was attached in the same manner. The urinals were attached to the building by the marble slabs forming the back being screwed to a piece of wooden studding three by four, which was nailed to the wall. The water closets were screwed to the waste pipe just above the marble floor, and the seats were screwed to the wall in the same manner as the urinals. The hoppers rested on the marble slabs and were screwed to the wall. The awning was thin corrugated iron, five or six feet in width, extending about seventy-five feet along the side and end of the building outside, and it was fastened to ribs or a frame riveted to heavy holdfasts driven into the wall at intervals of about six feet.. It could be removed by taking out the rivets and leaving the holdfasts in the wall, which was customary. These holdfasts, if removed, would leave a hole in the wall at the surface not.over one by one and a half inches. The defendant’s evidence further showed that tin was nailed to the
When Anna Mahoney became, a purchaser of these chattels on the foreclosure of the former chattel mortgage she had the right to remove them, but it is claimed that she lost this right by not severing them or reserving it in her lease from the defendant. Why should she forthwith make her new landlord a present of some $3,000 worth of trade fixtures? While it was competent for her to do so, it is evident that she had no such intention, for concurrently with the defendant’s execution of the lease to her she executed the chattel mortgage to the plaintiffs. The taking of a new lease does not necessarily and conclusively presume the surrender of
We deem the true rule on this subject to be, that if fixtures are distinctively realty, the right to be removed must be reserved in the lease. The right to remove fixtures which are distinctively realty is in the nature of a license, and must be exercised while the tenant is in possession under the lease, that grants it.. Taking a new lease without reserving the right is deemed an abandonment thereof. (Loughran v. Ross, 45 N. Y. 792 ; Talbot v. Cruger, 151 id. 117; Stephens v. Ely, 162 id. 79; Van Vleck v. White, 66 App. Div.
After counsel for both parties had made a motion for a direction of a verdict and the court announced its decision, but before the verdict was taken or entered, the defendant asked to go to the jury upon the question as to whether these articles could be removed without damage to the building. This request the court refused, and the verdict was then rendered.' The request was- timely made if that was a question for the jury; but by moving for a direction of a verdict and subsequently asking that only this one question be submitted to the jury, the defendant, in effect, consented that the court should pass upon the other questions of fact in the casé. (Winchell v. Hicks, 18 N. Y. 558 ; Ormes v. Dauchy, 82 id. 443 ; Thompson v. Simpson, 128 id. 270 ; Second Nat. Bank v. Weston, 161 id. 520; Shultes v. Sickles, 147 id. 704.) We think that as matter of law these chattels could be removed without substantial injury to the freehold, and, therefore, the request was properly denied.
These views require an affirmance of the judgment, with costs.
Dissenting Opinion
I dissent. While the fixtures might probably be- removed during the term of the tenancy, -when such term expires the tenant has no right of entry to remove trade fixtures.
Judgment affirmed, with costs.