62 N.Y.S. 372 | N.Y. App. Div. | 1900
The plaintiff’s argument rests largely upon the' assumption that the vendors of the plumbing materials by their own act made them a part of the' realty. But this assumption is erroneous. The trial court found upon sufficient evidence that these plumbing matérials could be removed without injury to the freehold. In such a case it has long been settled in this State that articles, which would ordinarily become fixtures bn account of their nature and the manner of their annexation to the realty, may retain their character as personal property by reason of a special agreement to that effect between the parties. (Ford v. Cobb, 20 N. Y. 344 ; Tifft v. Horton, 53 id. 377.)
The plaintiff also contends that, because the materials had apparently been made a part of the realty by the acts of the vendors, and because its advances were made in reliance upon this condition of the property, without actual knowledge of the reservation of title
Undoubtedly this common-law right has been curtailed by statute (Laws of 1884, chap. 315; Lien Law, Laws of 1897, chap. 418). The latter act. provides (§ 112) that a condition in a contract of sale reserving the title to the vendor until payment, “ shall be void as against subsequent purchasers, pledgees or mortgagees in good faith * * - , unless such contract * ' * * or a true copy thereof be filed as directed in this article.” The statute was, undoubtedly, framed with the view of protecting the rights of subsequent purchasers or mortgagees of chattels, transferred by a conditional bill of sale. It had previously been held that one having possession of personal property under such a conditional agreement for its purchase, could give no title thereto to a purchaser, although the latter acted in good faith and parted with value without notice of the want of title of his vendor. (Austin v. Dye, 46 N. Y. 500; Ballard v. Burgett, 40 id. 314.) The statute, recognizing this rule, provided for record notice substantially as in the case of chattel mortgages. The plaintiff cannot be in any better position under its mortgage upon the realty than it would have been in had it advanced its money upon the materials before they were annexed to the building and taken a chattel mortgage thereon. In that case, prior to this statute, even such a subsequent mortgage upon the unannexed chattels would not have availed, it. Nor, since the, statute, would it have availed it, if the conditional vendor had duly filed his contract. Why then should its mortgage upon the realty give it any greater rights ? If this section of the Lien Law is applicable to all contracts for the conditional sale of chattels, where, their personal character, although they may be annexed to the freehold,
The judgment should be affirmed, with costs.
Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.
Judgment affirmed, with costs.