87 N.Y.S. 546 | N.Y. App. Div. | 1904
This action was brought to recover possession of a steam boiler, fifty-four inches in diameter by twelve feet in length; one hot water boiler, three feet in diameter by ten feet in length, and one Oswego hot water heater. It was shown upon the trial that the plaintiff sold the articles in question to the firm of Coons & Wilson, who had a contract with the owner for putting in the heating apparatus in a building, then under process of construction, located on the north side of One Hundred and Twenty-fourth street, just east of Broadway, in the city of New York. The contract of sale was executed in duplicate, and provided that the title to the property should remain in .the vendor until the articles were fully paid for. It was known to the plaintiff at the time of the execution of these contracts that the property was to be placed in this building and that the vendees were not the owners thereof. The steam boiler was placed in the airsliaft upon a foundation constructed for that purpose and was bricked up on both sides, but was not connected with or attached to the walls. It could be removed by'tearing away this brick work and taking it out through the court into the street.. This would not have required the removal of any part of the main walls of thebuilding, but it would necessitate the removal of a portion of the retaining wall in front of the doors, large enough for working room and a portion of the sidewalk. These retaining Vails were not connected with the building itself. The hot water boiler could be taken out by remov
By undisputed evidence we think that it is established that the' property sought to be recovered ivas at the time of the commencement of this action real property. It was procured for the purpose of being placed in the building then in process of erection as a necessary and permanent adjunct to it. Its purpose was to supply the building with heat, which was necessarily essential to the use and occupation of the building, and as much required in its use as was light and access. The boilers and the attendant appurtenances were placed in a boiler room provided for their reception, were bricked in and occupied the space they were intended to occupy as permanent fixtures. There is nothing to show but that the owner of the building intended to install the boilers and appurtenances as a permanent accession to the realty. In the absence of any expression of intention upon liis . part it follows as a legal con
We are also of opinion that it was error to permit the plaintiff to recover damages for the depreciation in value of the boilers, as such damages were not pleaded, in the complaint. It is not necessary that we set out our reasons therefor, as upon the main question we think there can be no recovery.
It follows; that the judgment and order should be reversed- and a iiew trial granted, with costs to. the appellant to abide the event.
Van Brunt, P, J., Patterson,. Ingraham and McLaughlin, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.