29 N.Y.S. 1107 | The Superior Court of the City of New York and Buffalo | 1894
On February 28, 1894, plaintiff conveyed to the defendant a lot and private residence known as “No. 1045 Fifth Avenue,” in the city of New York, for the consideration of $80,000, subject to a first mortgage of $40,000, then a lien on the premises, and the balance of the purchase money was paid by the execution of a consideration money mortgage on said premises of $20,000, and the execution of another mortgage on Brooklyn property for a like amount. At the time of the said conveyance and delivery' of the mortgage, there were contained in the premises five certain ceilings, consisting of hand-painted canvas, firmly cemented and affixed to the building. The ceilings were painted by one Mr. Dupounais, who has since died. They were costly and handsome, and enhanced the value of the premises. The question involved is whether this painted canvas so affixed forms part of the realty, or whether it is( personalty, and not covered by the mortgage. The defendant, regarding the painted canvas as personalty, proposes to detach it from the ceiling, and has advertised it for sale at auction with her household effects. The defendant calls the painted canvasses “tapestries.” The subjects represented thereon are such as “Arts and Science,” “Music,” “Spring,” “Winter,” etc. Defendant claims that they are ornamental annexations, affixed for the purpose of rendering the occupation of the house more convenient or its appearance more pleasing; that they are articles of personal comfort or pleasure, occupying the same relation to the ceilings that pictures and panels do to the walls, and rugs and carpets do to the floor. Plaintiff, on the other hand, insists that the canvas paintings were affixed to the ceilings so as to become part and parcel of the realty, not capable of being removed except by defacing the ceilings and injuring the realty. At the time of the conveyance by the plaintiff to the defendant, a schedule of the personalty in the house which was passed by the deed was made, and forms part of the contract of sale. In it were specified with great particularity all the articles of personalty which were to go to the defendant, and the canvas paintings or tapestries do not
In a carefully considered English case (D’Eyncourt v. Gregory, L. R. 3 Eq. 382) it appeared that a life tenant of premises left a will
“The first of these which I think proper to mention is the tapestry which Avas put up by the testator. It is clear that the testator could not have disposed of paper affixed to the walls, nor, if he had used silk instead of paper for lining the Avails, could he, in my opinion, have removed the silk. So, if the testator had covered the walls of the house with paneling, he could not, in my opinion, have removed the paneling, and have left the walls bare. If he caused them to be painted in fresco, he could not have removed the paintings; and I think, if he had caused the panels to be painted, he could not have removed the painting any more than if he had put in panels already painted and fixed them close to the wall. In all these cases I think they must be considered to be fixtures, not removable by the tenant for life. Although the mode of fastening was not as complete as if the tapestries were actually affixed to and inseparable from the walls themselves, which, I apprehend, is never done, still I think they must be treated as part of the wall itself, and, by so placing them [the testator] deprived himself of the power of removing them. In the same class with these tapestries is the portrait of Lady Williams. * * In all these cases, whether it is the paper or the satin or the panels or the tapestry, they are all part of the wall itself, and they are fixtures not to be removed.”
It follows that the motion to continue the injunction must be granted.