
    Joseph W. Webber, Appellant, v. Franklin Brewing Company, Respondent, Impleaded with Enrico P. Berti, Defendant.
    First Department,
    January 24, 1908.
    Landlord and tenant — trade fixtures —- lease construed.
    Articles consisting of a bar, back bar, mirrors, foot and hand rail, screen doors, an : ice box, radiators, chandeliers with gas and electric fixtures, etc., installed by a tenant to equip the premises for saloon purposes and not so affixed that they ■ cannot be readily removed, are.trade fixtures which he may remove at the end of his term.
    A’ lease requiring the tenant to make certain alterations according to plans on file with-the building department and providing that “all improvements and alterations which may be put, placed or made in or upon Said premises shall belong to and .become the property of the” landlord “and treated as fixtures annexed to the freehold” should not be construed as covering trade fixtures but only those improvements the tenant covenanted to make.
    Appeal by the plaintiff, Joseph W. Webber, from a judgment of the Supreme Court in favor of the defendant, the Franklin Brewing Company, entered in the office of the clerk of the county of ¡New York on the 15th day of February, 1907, upon the dismissal of the complaint by direction of the court after a trial at the ¡New York 'Trial Term.
    
      Joseph Rosenzweig, for the appellant.
    
      Henry F. Cochrane, for the respondent.
   Soott, J.:

The plaintiff appeals from a judgment dismissing his complaint after both parties had rested. The appeal is from the judgment only. ¡Neither party requested to go to ¡the jury, and no motion was made for a new trial. The action is to recover the value of certain articles which were removed from the premises 157 Bleecker street, in the city of New York, and to which plaintiff claims title. On July 13, 1899, the plaintiff leased the said premises to one Berti for a term of four years, with the privilege to the tenant to extend the term of the lease to ten years. Berti was a collector for the Malcolm. Brewing Company, and apparently, acted as’ a dummy for that company. At all events, that company at its own' expense , extensively altered and improved the property and put. in the articles which are the subject of this action. The premises were leased to be used and occupied as a saloon or lawful place of amusement and for. dwelling purposes. , The. articles which' the defendant removed consisted of a bar and back bar .and- three mirrors, one • hand and foot fail, two screens, four summer doors, one ice box, three large radiators and three small ones and three partition doors, two window screens, six large chandeliers -and two window chandeliers with gas and electric fixtures, and some chairs and bottles. It does not appear that any of these articles were so' affixed to the realty that they could not readily be removed. . .

In due course the respondent Eranklin" Brewing Company became the owner of the lease and acquired whatever right-or title Berti or the Malcolm Brewing Company had to the fixtures above described. • . "

In April, 1904, the plaintiff began summary proceedings to dispossess the. tenants for' non-payment of rent, and it' was pending these proceedings that the articles were removed. We consider, that the court below" properly held that the articles; constituted. “trade fixtures” which have been defined to mean property placed -, by a tenant “ on rented realty to advance the business for which the realty was leased, and may, as against the lessor and those claiming under him, be removed at the end of the tenant’s term.” (Herkimer County L. c& P. Co. v. Johnson, 37 App. Div. 257, 263.) It may be that among the property removed there were some articles of minor value which were not strictly trade fixtures, but the attention óf -the court "was not specifically called to them below, and no request was made for a. verdict respecting them.

- The plaintiff relies upon certain clauses in the lease .whereby the tenant agrees that at the end of the term lie will surrender the premises - with “ all improvements and repairs thereon without charge or expense ” to the landlord, and that “all improvements and alterations which may be put, placed or made in or upon _ said premises shall belong, to and become the property of the party of the first part (landlord) when so made, and treated’ as fixtures annexed to the freehold:” We do not consider that the words above quoted should be held to apply to the trade fixtures which are involved in this action.

By the same' lease the tenant agreed that he would make certain alterations to the premises according to plans and specifications then on file in the department of buildings. '

The Malcolm Brewing Company made very extensive alterations and repairs to the building, which were certainly improvements and cost upwards of $13,000. The fair and reasonable construction to be given to the lease is that it was these contemplated alterations and improvements which the tenant agreed to surrender without charge or expense to the landlord, and not the ordinary, easily removable trade fixtures which in no proper sense were alterations or improvements to the building.

The judgment must be affirmed, with costs. ,

Patterson, P. J., Ingraham, Clarke and Houghton, JJ., concurred.

Judgment affirmed, with costs.  