4 Daly 359 | New York Court of Common Pleas | 1873
—The facts of the ease are briefly these. Plaintiff sold defendant a dwelling-house and lot, No. 407 Sixty-first street, in this city, and while negotiating the sale and as an inducement to the purchase, informed defendant that “ the house was complete and ready for him to move into, and that all he. had to do was to walk in and light the gas, as it was complete.” The contract of purchase made no allusion to any gas fixtures, but some few weeks after the sale, and after defendant had been in possession, plaintiff for the first time asserted ownership of the gas fixtures in the house; made a demand of the defendant for-their redelivery, which was refused, and then brought this action to recover damages for their wrongful detention. They consisted of chandeliers and brackets that could be unscrewed from the gas-pipe, “ without injury to anything else.” On the trial, the question eliciting the preliminary conversation, and plaintiff’s before-mentioned statement inducing the purchase, was objected to on his part, but allowed, to which he excepted, and on this appeal his counsel claims it was inadmissible, as tending to vary the written contract of sale. He refers to Shaw v. Lenke (1 Daly, 487) decided at general term of this court in 1865, as controlling. That case held that as between grantor and grantee, the mere conveyance did not ex proprio vigore grant “ gas fixtures ” as fixtures, under the legal import of the term, and as part of the realty. To the same effect are Montague v. Dent (10 Rich. (S. C.) 135); Vaughan v. Haldeman (33 Penn. 522); Rogers v. Con (40 Miss. 91); but contra, Hays v. Doane (3 Stock. (N. J.) 96); Wash, on Real Prop. (3d ed.) 17. The case of Shaw v. Leake, supra, must be followed, so far as it controls the question presented in this case, but -it does not assume to prevent the introduction of parol testimony “ to amnex incidents ” to the grant, and show that these gas fixtures had legally become “ fixtures,” intended by the owner “ ad integrand/u/m domumfi with a view to render the dwelling-house complete for the purposes
The attempt of the plaintiff to recover for these gas fixtures, after presenting them, in their complete condition, as an inducement for the defendant to purchase the property, was certainly inequitable, and it is satisfactory that a full answer at law exists to his unconscientious demand.
The judgment should be affirmed.
Judgment affirmed.
Present, Daly, Oh. J., Robinson and Loew, JJ.