Hirsch v. Graves Elevator Co.

In October, 1895, the defendant, a domestic corporation, with its offices at Rochester, agreed, in writing, with Isidor Hoffstadt, to erect and finish on or before January 1, 1896, two elevators, passenger and freight, in his seven-story business building, 244 and 246 West Twenty-Third street, for $3,500, payable one-half in -cash upon completion, and the balance by note payable in three months thereafter. The contract also provided “that the said elevators and attachments, .appurtenances, and machinery connected therewith * * shall be and remain personal property, and that the title thereto shall remain in the Graves Elevator Company until the same shall be fully paid for.” The payments were not made as agreed, and there is yet unpaid the sum of $1,200. Prior to May 12, 1898, there was a first mortgage of $100,000 and a second mortgage

The plaintiff’s counsel contends that owing to the character of the building in suit, and the use to which these elevators are put, and the manner in which they are affixed, no agreement between the manufacturers and the vendee can make them aught but fixtures and a part of the realty. But the intent here so unequivocally expressed is so large a factor in determining whether articles are fixtures or personalty that the authorities do not seem to support his position. Tifft v. Horton, 53 N. Y. 377 ; Duffus v. Furnace Co., 8 App. Div. 567 , 40 N. Y. Supp. 925 ; Stove Works v. Klingman, 20 App. Div. 449 , 46 N. Y. Supp. 721 . That an agreement, however, may not be controlling, see Yoorhees v. McGinnis, 48 N. Y. 278 , at page 287.

It is also contended by the plaintiff that, since the contract between Hoffstadt and the elevator company was a conditional sale, the failure by the vendor to file the contract in the county clerk’s office, as required by statute (Laws 1897, c. 418, art. 9, §§ 112, 113), renders it absolutely void as against this plaintiff, a subsequent mortgagee in good faith. Sayles v. Purifying Co. (Sup.) 16 N. Y. Supp. 555 , at page 558. In an action in which this same elevator company was a party, and the same language as here employed was under consideration, the statute was held not to apply, as the elevator was not in existence when the contract was made; and therefore the contract for the conditional sale of the elevator could not be, in the language of the statute, “accompanied by immediate delivery.” Elevator Co. v. Callanan, 11 App. Div. 301 , 42 N. Y. Supp. 930 . See, also, Hassam v. Griffin, 18 Johns. 48 ; Parsons v. Loucks, 48 N. Y. 17 ; Manufacturing Co. v. Holbrook, 118 N. Y. 586 , 23 N. E. 908 . The court is not unmindful that the Callanan opinion rests on facts, of more or less importance, differing from those here existing, and that many and real distinctions may be drawn between that case and this one under consideration. There is, however, considerable conflict presented by the affidavits as to how these elevators are constructed, and the effect upon the building consequent upon their removal. There is also a serious dispute as to the good faith of the plaintiff as mortgagee. It is not satisfactory to determine these issues on affidavits. They should be disposed of upon the trial. Manning v. Ogden, 70 Hun, 399 , 24 N. Y. Supp. 70 . To vacate this injunction would certainly