
    Susan W. Center, Appellant, v. James Everard and Sheridan Shook, Respondents.
    (Supreme Court, Appellate Term,
    January, 1897.)
    Tease — Covenants — Fixtures.
    A lease of premises for a saloon contained a covenant that “ whatever alterations or improvements shall be made by the parties of the second part shall be deemed permanently annexed to the freehold and become the property of the owners of the demised premises.” Thé tenants put in a paneled mahogany ceiling, new wainscoting, .baseboards, marble platforms and slabs in the water-closet, all connected with the bar fixtures so as to constitute one piece, and upon the expiration of the term removed them all. In an action to recover the damage to the premises caused by such removal, Held, that such
    
      woodwork and marble work constituted permanent improvements-within the meaning of the covenant; that their connection with the bar fixtures did not convert them into trade fixtures, and that their removal was a breach of the covenant.
    Appeal by plaintiff from a judgment in favor of the defendants,, with costs, rendered by the justice of the First District Court. .
    The action was to recover damages against the defendants as sureties for the breach of the covenant of a lease to Patrick. Mallon and Hiram Becannon of the store on the southeast comer of Third avenue and One Hundred and Tenth street, let to them for a term of nine years and six months from November 1, 1896-The plaintiff sues as assignee of the lessors.
    Forster & Spier, for appellant.
    D. M. Neuberger, for respondents.
   Daly, P. J.

The defendants are sureties upon a lease which contained the covenant “ that whatever alterations or improvements shall be made by the parties of the second pari? shall be deemed permanently annexed to the freehold and become the-property of the owners of the demised premises.” The parties-of the second part were the tenants and they fitted up the premises-as a saloon at a cost of about $8,000, by putting in a paneled mahogany ceiling. connected with the bar fixtures and the side walls so as to constitute one piece and by putting in a marble floor and toilet fixtures with marble slabs and platforms. After-the expiration of the lease, which was for the term of nine years- and six months, the tenants left the premises and removed all the fixtures which they had put in, including the ceiling, the wainscoting, baseboards, marble platforms and slabs in the water-closet. The action was brought, not to recover the value of these fixtures, but for damages caused to the premises by their removal; and the proof offered was as to the value of restoring the floors, baseboards, water-closet and repairing the walls 'and ceiling; the-whole expense being $158.05. I

The defense relied upon was that the woodwork and marble-work removed were part of the bar fittings and were not fixtures, nor alterations, or improvements, under the provision of the lease; and the statute of distribution is invoked that “things annexed' to "the freehold or to any building for the purpose of trade or-manufacture and not fixed into the wall of the house so as to be essential to- its support,” shall be deemed personal property. 2 R. S. 83, § U. The defense also showed that the fixtures were removed with as much care as was possible under the circumstances.

Before the lease in question the premises'had been used for a saloon, and.it is tó be inferred, from the evidence, that such was the use for which they were let to the new tenants. Alterations and improvements by the tenants were contemplated, and it was deemed that they should be deemed permanently annexed to the freehold and to become the property of the owners of the- demised premises.” The alterations and- improvements made by the tenants consisted of the ceiling, new floors, wainscoting for the side walls and- marble water-closets. That these were so constructed that they formed one piece of work with the bar fixtures did not deprive- them of the character of alterations and improvements. The point of defendants’ argument seems to be that as everything was so connected everything was removable, but the contrary effect would ordinarily follow. If the bar fixtures were so united to the ceiling and wainscoting as to constitute but one piece, it would seem as if under the. provisions of the lease such .fixtures became the property of the landlord, ‘ and, under the covenant, instead of the tenants being allowed to take away what otherwise they would have been entitled to remove as personalty, .the landlord would be allowed to keep what otherwise she would not have been entitled to retain as realty.

The provisions of the statute have no application to the case, .since they were superseded by the express contract of- the parties .which was evidently intended to cover fixtures which ordinarily might not be deemed permanent or annexed to the freehold within .the statute. ' New ceilings and wainscoting and new water-closets were undoubtedly permanent improvements, and within the covenant. The ceilings were composed of mahogany panels fastened with screws in large sections which could not be detached without more or less tearing away of the plaster. The water-closets had to be removed "in order to take away woodwork which had been put in to cover the walls. If the. tenants had put in the new, ceiling, walls and water-closets as independent alterations or improvements disconnected with their bar fixtures there would not be the shadow of claim that they did not pass under the covenant -of the lease to the owners. ■ By connecting the .bar fixtures -w-ith them so that the whole improvement constituted, but one piece of work, the ceiling and other improvements were not converted into trade fixtures. The removal of the improvements of the property constituted a breach of the covenant, and the plaintiff should have had judgment for the very moderate damages which she claimed.

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

MoAdam and Bischoff, JJ., concur;

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