
    Mechanics and Traders’ Bank, Respondent, v. Bergen Heights Realty Corporation and Others, Defendants, Impleaded with Franklin L. Sheppard and Howard R. Sheppard, Doing Business as Isaac A. Sheppard & Company, Appellants.
    Second Department,
    March 31, 1910.
    
    Real property—fixtures — lien of prior mortgage — breach of conditional sale by contractor.
    Where, without the knowledge of the owner of a tenement house under process-z of construction, a person furnished the contractor with ranges for heating and cooking purposes, under a contract of conditional sale, they became fixtures when annexed to the realty by the contractor, and are covered by the lien of a prior mortgage given by the owner although the contractor failed to pay the purchase price.
    The lien of a mortgage covers all that was realty when the mortgage was accepted as security, and all accessions to the realty except where by valid agreement to which the mortgagee is a party, the character of chattels is impressed upon accessions.
    
      Appeal by the defendants, Franklin L. Slieppard and another, etc.,, from a judgment of the County Court of Kings- county in favor of the plaintiff, entered in the office of the clerk of said county on the 6th day of January, 1909, upon the decision of the court rendered after a trial before the court without a jury.
    
      William 12. Wilson \_Oharles L. Ajpfel with him on the brief], for the appellants.
    
      Edward Snyder, for the respondent.
   Woodward, J.:

The defendants Slieppard appeal from a judgment in favor of the plaintiff in an action to foreclose a real estate mortgage.

In or about January, 1907, the defendant Bergen Heights Realty Corporation was the owner of the mortgaged premises described in the complaint, and at that time made a contract with one Sacks, by the terms of which he was to cause to be installed in a certain -tenement house in course of construction oh the premises seventy-one ranges for heating and cooking purposes. Sacks bought the ranges from the defendants Sheppard under a contract providing that the title should remain in the vendors until the purchase price was paid ; the stoves were installed in the tenement house in the following June, and Sacks did not pay the purchase price in full. Prior to that time,.iivMay, 1907, the defendant corporation mortgaged the premises to secure the payment of the sum of $10,000, and the plaintiff owns, this mortgage by assignment. The defendants Sheppard contend that they are not proper parties defendant in the foreclosure action ; that the ranges did not become a part of the realty for the reason, that they were sold to Sacks under a contract of conditional sale, which was duly filed, and for the further reason that they were not annexed to the freehold in such manner as to become fixtures. ■ They claim that the judgment operates to deprive them -of tlieir property without their consent, and without due process of law.

The ranges were placed upon the premises with the consent and at'the reqnést of the owner and mortgagor, who had no knowledge of the agreement between the contractor, Sacks and the. defendants Sheppard. The owner knew at the time the mortgage was given that the ranges were to be installed, and the contract of alleged conditional sale was not filed until a month, later. . .

The manager in charge of the office of the defendants Sheppard describes in this way the manner in which the ranges were placed in the tenement house : “ They are a portable range, connected with the fine with an elbow, connected with hot water boilers by a coupling to the water back, and a water back to the range. Then it comes down and connects with the coupling to the water back, then simply a round elbow that sets in the flue,. portable, not bricked in any way. Just an ordinary drum elbow, no fastening whatever, just set into the. flue hole, and these ranges were just a short distance from the wall, a couple of inches, not fastened to the floor, set on a concrete hearth. * * * It could be disconnected by unscrewing this 'coupling and removing this elbow, that is the only coupling that it would be necessary to unscrew in order to take the ranges out.”

It is a matter, of common knowledge that heating and cooking ranges form a part of the necessary and permanent equipment of a tenement house; that they are not ordinarily supplied by tenants, and there is evidence in the record of such custom.

In Potter v. Cromwell (40 N. Y. 287) a certain portable grist mill was held to be a fixture which could not be taken from a purchaser at sheriff’s sale under execution against the original owner of the premises where it was placed. The court said : “ In Crane v. Brigham (3 Stockton, 1ST. J., 29), the chancellor of Hew Jersey held that the permanency of the attachment ‘ does not depend .so much upon the degree of physical force with which the thing is attached, as upon the motive and intention of the party in attaching it. If the article is attached for temporary use, with the intention of removing it, a mortgagee cannot interfere with its removal by the' mortgagor. If it is placed there for the permanent improvement of the freehold, he may.’ * * * The law upon this subject is very correctly and succinctly summed up in the case of Teaff v. Hewitt (1 McCook’s Ohio, 511, 529-530), where it was held 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 annex? ation, to make a permanent accession to the freehold.”

The Cromwell case was followed in Jermyn v. Hunter (93 App. Div. 175). This was an action, to recover possession of a steam boiler and other parts of á heating apparatus installed for the owner-of certain real estate by his contractor under circumstances similar to those in this case. A judgment in favor of the plaintiff was reversed. The discussion of the questions here involved in the opinion of Mr. Justice Hatch is directly applicable to the facts here presented, and it is necessary to quote only a few words in support of my conclusion that the judgment should be affirmed :

' “ If vendors of personal property seek to make a conditional sale they should be required to deal -with the owner of the property,' and not alone with the contractor without notice to the owner; Unless they do, there is no justification for imposing an incum.brance • upon the building, without the owner’s knowledge or con-' sent-. The Lien Law of the State (Laws of 1897, chap. 418, art. 1, as amd.) furnishes adequate protection for vendors of chattels which' enter into the construction of realty. These-.rights and remedies have been adopted for the protection of vendor, contractor and owner ' and should be held sufficient in remedy. An attempt to make application of the doctrine which obtains between a -vendor and owner may easily lead to the perpetration of a gross wrong upon the owner and the incongruity is so apparent' as to call for its instant rejection. The sale of the property at the foreclosure carried with it the title' to these fixtures, and the defendant as purchaser at the sale acquired • good title.”

The lien of a mortgage covers all that was realty when the- mortgage was- accepted as security, and all accessions to the realty, except when by a valid agreement to which the mortgagee was a party the character of chattels is impressed upon the accessions.. (McFadden v. Allen, 134 N. Y. 489.) There was no such agreement in this case.

The judgment should be affirmed, with costs.

Jenks, Burr, Thomas and Rich, JJ., concurred. '• . -

Judgment of the County Court of Kings county affirmed,' with posts.  