McCloskey v. Henderson

187 A.D. 900

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1919
• Status: Published

Opinion

Judgment of the County Court of Kangs county and order denying defendant’s motion for a new trial reversed, and complaint unanimously dismissed, with costs to the appellant, upon authority of Realty Associates v. Conrad Construction Co. (185 App. Div. 464), decided December 13, 1918. The finding of the jury in answer to the first question submitted to it by the learned trial judge is reversed as against the evidence. We find that the steam-heating plant was delivered on the premises and installed completely in eleven houses, and partially in the remaining eleven houses, with the knowledge and consent of plaintiff that it was to be affixed to and become an integral part of the freehold, and that it was so affixed, without any notice to the defendant or to the holder of the first mortgage of plaintiff’s claim that the delivery was under a conditional sale agreement, which agreement was not filed until after judgment and sale in defendant’s foreclosure action; that the defendant subordinated his mortgages to the building loan and the holder of the building loan advanced moneys on the braidings upon the faith of the delivery and installation of the heating plant. The steam-heating plant as completely and partially installed was part of the realty, and could not be removed without serious injury thereto. Jenks, P. J., Rich, Putnam, Kelly and Jaycox, JJ., concurred. Order to be settled before Mr. Justice Kelly.