
    In re HEMMER et al.
    (District Court, N. D. New York.
    May 6, 1922.)
    Fixtures &wkey;>(8(5) — Property of milk company held personalty.
    Machinery sold a milk and cream company under contracts of conditional sale did not attach to the realty and become subject to mortgage liens, where it could be removed with very little, if any, damage to walls or to the building,, though foundation had to be placed under a boiler and a wall erected to protect it.
    In Bankruptcy. In the matter of Anthony Hemmer and others, doing business in the name and style of the Shepherd Milk & Cream Company, bankrupts. Controversy concerning whether certain property goes to trustee as personal property or became part of realty subject to mortgage liens.
    Property held personalty.
    Tracy, Chapman & Tracy, of Syracuse, N. Y., for trustee.
    Olmstead, Van Bergen & Searl, of Syracuse, N. Y., for mortgagees.
   RAY, District Judge.

In view of the conditional contracts of sale and the circumstances under which the personal property, machinery, etc., was placed in the building I think a question of fact is presented for the determination of the court.

I do not think it was intended to make this machinery a part of the realty, and .in view of the contracts of conditional sale, and what was done by way of attaching same to the realty, do not think the personal property in question ever became a part of the realty and subject to the mortgage lien. True, a sort of foundation had to be placed under the boiler, and it is also true that a wall was erected to protect same; but this property can be removed with very little,' if any, damage to these walls or to: the building.

In view of Tifft v. Horton, 53 N. Y. 377, 13 Am. Rep. 537: Ford v. Cobb, 20 N. Y. 344: Davis v. Bliss, 187 N. Y. 77. 79 N. E. 851, 10 L. R. A. (N. S.) 458: Sisson v. Hibbard, 75 N. Y. 542, and other cases of like import, I hold that this personal property in ciuestion did not become a part of the realtv, and subiect to the lien of the mortgages, and that the trustee in bankruptcv is entitled to the same.

There will be an order accordingly.  