Majority
p. 240Henry Iden, Resp’t, v. Isaac Sommers, App’lt. (New York Superior Court, General Term, Filed May 2, 1892.) The following is the opinion of the court below: McAdam, J. J.—The The property, consisting of “ gas fixtures,” was leased by the plaintiff to Wolff on the conditional sale and instalment plan, title to remain in plaintiff until the fixtures were paid for. While the property was in the possession of Wolff he mortgaged the property to the defendant, who subsequently foreclosed his mortgage and disposed of the fixtures, thereby making himself liable to the plaintiff in trover as for conversion. Lempke v. Peterson, 1 City Ct., 15. The defense is that the defendant had no knowledge of the conditional agreement under which Wolff held the property, and that the plaintiff having neglected to file such agreement “ with the conditions and reservations therein,” those providing that title to the fixtures should remain in the plaintiff until they were paid for became inoperative and void. Laws 1884, ch. 315. There would be force in this objection but for the fact that the act cited does not apply to “ household goods,” Laws 1885, chap. 488; Laws 1886, chap. 495, and “ gas fixtures ” are “ household goods ” within the proper meaning of that term. They are sometimes comprehended by the term “ furniture," which means “ that which furnishes or whatever is added to the interior of a house for use or convenience,” Bell v. Golding, 27 Ind., 179 ; Crossman v. Baldwin, 49 Conn., 491 ; 2 Burrills Law Dic., 33, and includes brass work, knobs, window shutters, etc. (Worc. Dic.) In Shaw v. Lenke, 1 Daly, 487 “gas fixtures” are included in the term articles of furniture movable in their nature,.
Headnote
Sale—Conditional—Gas fixtures.Gas fixtures are household goods and are not within the operation of chapter 315, Laws 1884, requiring conditional sale agreements to be filed.
Appeal from judgment in favor of plaintiff, entered upon verdict directed by the court, and from order denying defendant’s motion for a new trial.
p. 241although attached by screws, nails, brackets, etc. See also Lawrence v. Kemp, 1 Duer, 363 ; McKeage v. Hanover F. I. Co., 16 Hun, 239 ; aff’d 81 N. Y., 38 . In Carnagy v. Woodcock, 2 Munf., 234 , the phrase “ household goods ” is defined as more comprehensive than “furniture,” including everything in and about the hous.e that has usually been held and enjoyed therewith, and would tend to the comfort and accommodation of the householder. See also 9 Am. & Eng. Enc. of Law, 782, note 3; Paton v. Sheppard, 10 Sim., 186; Manning v. Purcell, 2 Sm. & G., 284. The expression “household goods” includes every article of personal property in the house or on the premises intended for ornament, use or consumption, Dayton v. Tillou, 1 Robt., 21, even coal and wood provided for the use of the family. In re Frazer, 92 N. Y., 239 . These articles do not use their generic character by being placed in a saloon or store, unless the intention to exclude them from the operation of the term “ household goods ” is made apparent, and that is not so here. It is the species of property rather than the temporary use made of it that determines its true character under the statute. So considered, it follows that “gas fixtures ” are, by'force of the acts of 1885 and 1886 (supra), taken out of the operation of the act of 1884 (supra), requiring conditional sale agreements to be filed. The acts of 1885 and 1886 were passed in the interest of those who sell “ household goods ” on the instalment plan, and must be liberally construed to effectuate their purpose. The objection that a duplicate copy of the agreement was not delivered to Wolff was not made at the trial, when it might have been obviated, and cannot be raised for the first time now (cases cited in 33 St. Rep., 425 .) If the construction aforesaid be correct, the verdict in favor of the plaintiff was properly directed, and the motion for a new trial must be denied.
Hess, Townsend & McClelland, for app’lt; Abram Kling, foresp’t.
The judgment and order should be affirmed, with costs, upon the opinion filed by the trial judge on denying defendant’s motion for a new trial.
Sedgwick, Cb. J., and Freedman, J., concur.