Fitzgibbons Boiler Co. v. Manhasset Realty Corp.

125 A.D. 764, 110 N.Y.S. 225, 1908 N.Y. App. Div. LEXIS 2888

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1908
• Status: Published

Opinions

Houghton, J.:

The action is for conversion of certain steam-heating boilers installed as a part, of the steam-heating plant of an apartment house in the city of Rew York.

The premises were originally owned by one Roble and the apartment was erected by him. During the course of its erection he contracted with one Kirk to supply the heating apparatus therefor. Kirk contracted with the plaintiff for certain boilers for the heating system of the building, on condition that title should remain in the vendor until they were paid for, and Roble knew of this conditional purchase. The conditional bill of sale was in writing and was signed in duplicate and one duplicate was delivered to the purchaser but it was never filed. Such ■ contracts of conditional sale of boilers, amongst other specified property, were not required to be filed according to the provisions of section 115 of the Lien Law (Laws of 1897, chap. 418, as amd. by Laws of 1898, chap. 354; repealed by Laws of 1905, cháp. 503

*), in force at the time of the execution of the contract in question. The boilers were set on a concrete flooring and the pipes from them were connected to the heating system of the building by the ordinary coupling. By disconnecting this coupling the boilers could be moved on rollers about the floor, but could not be removed from the building without enlarging the doorways by cutting out the wall or taking up the floor and hoisting them to the story above.

When ¡Noble purchased he gave back a purchase-money mortgage to his grantor, one Butler, who assigned it to a third party. ¡During the erection of the building a building loan mortgage of large amount was placed upon the property. Thereafter the original purchase-money mortgage was foreclosed and Butler became the purchaser and he deeded the property to the defendant which, as well as Butler, was a bona fide purchaser for value, having no notice of plaintiff’s claim.

Kirk failed to pay the purchase price of the boilers and the plaintiff demanded that they be returned to it, and upon refusal brought this action.

The nonsuit was proper and in accordance with the uniform decisions of this court, that where personal property has been sold with full knowledge on the part of the seller that it is to be placed in' a building in such manner as to form á part of the realty, a bona fide purchaser of the realty for value, without notice, obtains good title as against the conditional vendor. (Jermyn v. Hunter, 93 App. Div. 175 ; McMillan v. Leaman, 101 id. 436; Kirk v. Crystal, 118 id. 32; McLean v. Griot, Id. 100; Huber Co. v. McCabe, 124 id. 936.) These decisions are in conformity with that of the fourth department in Andrews v. Powers (66 App. Div. 216) and that of the second department' in Milicie v. Pearson (110 id. 770). Even though there may be found some expressions of the courts in Duntz v. Granger Brewing Co. (41 Misc. Rep. 177; affd., 96 App. Div. 631, and 184 N. Y. 595) or in Davis v. Bliss (187 id. 77) seemingly to militate against this holding, still we feel impelled to adhere to our view on this particular proposition until instructed to the contrary by the court of last resort.

The judgment should be .affirmed, with costs.

Ingraham, McLaughlin and Laughlin, JJ., concurred; Scott, J., dissented.

Prior to its repeal this section had been amended by Laws of 1904, chaps. 259, 698.— [Rep.