Cosgrove v. Troescher

62 A.D. 123, 70 N.Y.S. 764

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1901
• Status: Published

Opinion

Laughlin, J.:

Some of these articles were, as matter of law, personal property and this necessitates a reversal of the judgment. It is now well settled by authority that carpets, window shades and gas fixtures are movables and not fixtures. (McKeage v. Hanover Fire Insurance Company, 81 N. Y. 38 ; Manning v. Ogden, 70 Hun, 399; Shaw v. Lenke, 1 Daly, 487 ; Kirchman v. Lapp, 19 N. Y. Supp. 831; Towne v. Fiske, 127 Mass. 125 ; Rogers v. Crow, 40 Mo. 91; Capehart v. Foster, 61 Minn. 132.) It needs no citation of authority to show that the ash cans were personal property.

We are also of opinion that the ranges were movables as matter of law. They were not set in any place specially constructed for them. They stood out on the floor wholly disconnected from the walls, floor or ceiling, except that they rested on feet which were not attached and were connected with the flues as stoves are generally connected. Their connecting pipes were screwed on to the gas supply pipes, but this was similar to the connection between an ordinary stove and a permanent boiler and in no material respect differs from the attachment of gas fixtures. It has been held that portable furnaces, stoves and stove pipes are movables. (Freeland v. Southworth, 24 Wend. 191; Towne v. Fiske, supra.)

It is quite likely that the refrigerators and gas logs were also movables as matter of law, but the evidence is not sufficiently definite or satisfactory to enable us to so decláre. It does not appear whether the alcoves, in which the refrigerators were placed were finished off to correspond with the rest of the room, or whether the refrigerators were purchased in the market or specially constructed to fit these alcoves. It does not appear that the trimmings and furnishings of the refrigerators corresponded with those of the room in which they were located. The evidence does not show whether the awnings had been specially constructed for the windows of these apartments or whether they had been used. The same is true of the drying frames.

For aught that appears in the record, the awnings, drying frames, gas logs and refrigerators may have been constructed and furnished under circumstances that would show they were intended as permanent fixtures. (Pratt v. Baker, 92 Hun, 331.) The determination of the question may depend upon the intention of the owner, to be ascertained, not from his testimony as to what he intended nor from any undisclosed purpose or intent which he may have had, but from .his acts and conduct, and all the surrounding facts and circumstances. (Pfluger v. Carmichael, 54 App. Div. 153; Snedeker v. Warring, 12 N. Y. 170, 178; Hopewell Mills v. Taunton Savings Bank, 150 Mass. 519, 522.)

In Potter v. Cromwell (40 N. Y. 287) the court states that “ the true criterion of a fixture is the united application of three requisites: First. Actual annexation to the realty or something appurtenant thereto. Second. Application to the use or purpose to which that part of the realty with which it is connected is appropriated. Third. The intention of the party making the annexation to make a permanent accession to the freehold.” This doctrine was reaffirmed in McRae v. Central National Bank of Troy (66 N. Y. 489) and in Ward v. Kilpatrick (85 id. 413).

In McRae v. Central National Bank of Troy (supra), however, the court say that “ If the property had in its own nature a determinate legal character, either as realty or personalty, the manner in which the parties treated it would not change that character; yet, when, as in this case, the character of the property (heavy machinery fastened to the floor by bolts, nails and nuts) is not so fixed, but depends upon the intention with which it was annexed, the conduct of the party who annexed it has an important bearing as throwing light upon that intention.” The property which we have declared movables, as matter of law, has in its “ own nature a determinate legal character ” as personalty, and falls within the exception pointed out in the opinion from.which We have quoted.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Patterson, O’Brien, Ingraham and McLaughlin, JJ., concurred.

Judgment- reversed, new trial granted,-costs to appellant to-abide • event.