Horowitz v. Welt

224 A.D. 37, 229 N.Y.S. 519, 1928 N.Y. App. Div. LEXIS 9922

Opinion

Per Curiam.

The purchaser at the foreclosure sale purchased only such right, title and interest as the mortgagee had in the premises. (Central Union Gas Co. v. Browning, 210 N. Y. 10.) The mortgage was made prior to the conditional sale of the alleged chattels and, therefore, was not made upon the faith and credit thereof. The purchaser at foreclosure, therefore, took subject to the conditional sales agreement. (Kohler Co., Inc., v. Brasun, 222 App. Div. 338.) The plaintiff testified that the fixtures in question could be removed without serious damage to the realty. The defendant offered no direct proof in contradiction of this testimony. The plaintiff, therefore, made out a prima facie case, leaving at issue only the amount of damage which should have been allowed in the event that any fixtures to which the plaintiff might be entitled were not delivered to him. Upon a new trial the defendant may be able also to offer proof upon the issue of whether the fixtures were so affixed to the realty as to have become a part thereof.

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

Present — Dowling, P. J., Merrell, Finch, McAvoy and O’Malley, JJ.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event.