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Pfluger v. Carmichael

54 A.D. 153 Court N.Y. App. Div. English

Delivered by Jenks, J.:

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p. 153
Frederick Pfluger, Respondent, v. James Carmichael, Appellant.

Headnote

Fixtures, between mortgagor and mortgagee — a stepping stone and vases owned by a-husband in front of property owned and mortgaged by his wife.
The rule concerning fixtures is the same between mortgagor and. mortgagee as between grantor and grantee.
Where a mortgage executed by a husband and wife purports to cover premises * owned by the wife “with the buildings and improvements thereon erected,” and a sheriff’s deed given on a foreclosure thereof conveys the premises with “ all improvements,” a stepping stone on the sidewalk owned by the husband, having his name cut therein, and vases owned by him weighing 200 or 300' pounds placed in the garden in front of the house, for ornamental purposes, but not fastened to the soil in any way, which have been moved several times, do not as a matter of law, in the absence of proof of such intent on the husband’s .part, form part of the realty.
Appeal by the defendant, James Carmichael, from a-judgment of the ’ Municipal Court of the city of Hew York, borough of Brooklyn, fifth district, in favor of the plaintiff, entered in the office of the -clerk of said court on the 14th day of September, 1899, in an action for the conversion of certain chattels.
Nathan Ottinger, for the appellant.
Robert O'Byrne, for the respondent.

The realty belonged to the wife of the plaintiff, but the plaintiff .owned the articles in dispute.

The appellant contends that the undisputed evidence establishes as a matter of law that the stepping stone and the vases were not personal property. In determination of this question, the rule between mortgagor and mortgagee is the same as between grantor and grantee. (McFadden v. Allen, 134 N. Y. 490 .) The learned counsel for the appellant urges that his contention need but be based upon the plaintiff’s own admission that the articles were there “ for the purpose of ornamenting the ground,” and that “they were sufficiently heavy to stand by their own weight.” The fact that they were placed as ornaments is not of great importance. In one of the cases cited by the appellant (D'Eyncourt v. Gregory, 3 Eq. Cas.

p. 154
396), Romilly, M. R., speaking of the character of the articles (vases) in suit, says: “ I think i.t does not depend * * * but upon this—'Whether they are strictly and properly part of the architectural design for the hall; *■ * * and put in there as such, as distinguished from mere ornaments to be afterwards added.” Snedeker v. Warring ( 12 N. Y. 170 ), cited by counsel.as conclusive, may be distinguished, for there, though the statue was not fastened to its base, it weighed three or four tons, and, as said by the court, rested as firmly by its own weight as if otherwise affixed. And moreover it was placed on a permanent base of masonry, with seams pointed with cement superimposed upon an artificial mound built purposely to receive it, and raised three or four feet above the surrounding .land upon a substantial stone foundation. And the sundial was three or four feet high, of material similar to.the house and to the statue, and supported or constructed upon a block of red stone' in the form of a pedestal. The vases in D'Eyncourt v. Gregory (supra), which were of sculptured marble, were held to be strictly and properly a part of the architectural design of the hall.

The purpose of the annexation and the intent with which it was made are the important considerations in this case. (McRea v. Central Nat. Bank o f Troy, 66 N. Y. 489 , 495.) Intention does not mean the undisclosed purpose, but the purpose as manifested by acts and the sound inferences therefrom. (Snedeker v. Warring, supra; Hopewell Mills v. Taunton Savings Bank, 150 Mass. 519 .) The'name of the plaintiff was cut into the stone, which was placed upon the sidewalk, not fastened to it in any way, and had been moved several times. The vases, which weighed two or three hundred pounds, were placed in the garden in frontmf the house, were not fastened to the soil in any way, and had been shifted from time to time. . I am of opinion that the court could riot say as matter of law that such articles were annexed by the plaintiff with the intention that they should form part of the realty. If the question be less clear as to the stepping stone, it must be remembered that the name of the owner was cut into it and that it was placed upon the sidewalk.

The appellant further insists that' inasmuch as . the mortgage by plaintiff and his wife, and the sheriff’s deed on foreclosure, conveyed the premises with “all improvements,” this necessarily

p. 155
included those articles as matter of law. The expression of the mortgage is “ All that certain piece, * * * with the buildings and improvements thereon erected.” The authority cited by the learned counsel- (French v. Mayor, 16 How. Pr. 220 ) holds that, the term “ improvements ” in the lease in that case embraced every addition, alteration, erection or annexation made to render the premises more u available and profitable or useful and convenient.” True, the court says that “ improvements ” is a more comprehensive word than “fixtures,” and includes them. But the question in this case is whether the articles are fixtures, and I seriously doubt whether a stepping stone or ornamental vases must necessarily, as matter of law, be held “ improvements.” Further, none of the articles passed upon in French v. Mayor (supra) was of the character of the articles in this case; and the opinion of the court discusses the relations of the parties and their manifest contemplation when the lease was made. So far as the contention of the appellant as to the right of action against the defendant is concerned, it is sufficiently met by the authority of Thorn v. Sutherland ( 41 N. Y. St. Repr. 572 ; affd., 131 N. Y. 622 ). As to the question of jurisdiction, it is sufficient to cite the decision of the Court of Appeals in Worthington v. London G. & A. Co. ( 164 N. Y. 81 ).

The judgment should be affirmed, with costs.

All concurred.

Judgment of the Municipal Court affirmed, with costs.

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