
    The Phœnix Mills, App’lt, v. James A. Miller, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 28, 1891.)
    
    Chattel mortgage—Reassignment—Fixtures.
    A company mortgaged fixtures attached to its mill, some of the articles being permanently attached. The mortgagee, or those claiming under him, took, under the mortgage, all of the articles which were not real estate. The mortgage, or an interest in the remaining fixtures, was then reassigned to the company. Meld, that by this the company gained no new rights, but was only restored to those which it had had originally, and could not maintain trover for said fixtures against a purchaser of the premises under the foreclosure of a mortgage given prior to the time when, the company took title.
    Appeal from judgment dismissing the complaint entered upon, the report of a referee.
    
      
      Maxiuell Bros., for app’lt; Stover & Nisbet (M. L. Stover, of counsel), for resp’t
   Learned, P. J.

This is an appeal from a judgment on report of a referee.

This action was commenced in 1886 to recover the value of certain property alleged to be wrongfully detained by defendant. The property was machinery which plaintiff claimed was still personal property although attached to a mill. The plaintiff recovered on trial at circuit. The judgment was reversed at general term for errors in admitting and excluding evidence. 4 St. Rep., 787. It was again tried at circuit and plaintiff again recovered. The judgment was also reversed by the general term, July, 1887 ; the case appears not to have been reported, but a copy of the opinion has been furnished us.

The cause was again tried, this time before a referee, who reported in favor of defendant. The plaintiff appeals. No question as to admission or exclusion of evidence was made.

The referee, among other things, finds that at the time the plaintiff placed said property on the premises it intended that the same-should be annexed to and form part of the real estate; and with the intention that it should be permanently used thereon; that said property was so situated that its removal would materially injure-the value of said real estate and seriously impair its usefulness for mill purposes; and that the property could not be removed without serious injury to the building and to said real estate.

The plaintiff seeks to make title to this property through a chattel mortgage made by itself to Blaisdell & Co., and which was subsequently assigned by Blaisdell & Co. to Warner and by Warner to the plaintiff itself. But it was pointed out in the opinion in 4 St. Rep., 787, that this transaction simply restored plaintiff to its original rights as respects the title to the property held by it when the mortgage was given. Plaintiff gained no-better title than it had when the mortgage was given.

It was further stated in that opinion that the plaintiff held the-position of grantor and defendant that of grantee, the mortgage to Blaisdell & Co. being now out of the way.

It further appears that Warner while he held the chattel mortgage with another holder of a chattel mortgage, Inman, took all that belonged to him under the chattel mortgage. He plainly took, according to his own testimony, every thing that did not come within the description of real estate. Having done this he then assigned all his right to shafting, etc., and fixtures or personal property affixed to the mills. Thus the holder of the mortgage had enforced it against every thing which he supposed was personal and then assigned his interest in every thing else to the original mortgagor. Then the mortgagor endeavors to make-title to certain things as personal, by virtue of this mortgage which it had itself executed.

We have examined this case as this general term had already done in two instances. We do not think it necessary to discuss the doctrine of fixtures or to state at much length the facts of the case. We think that the conclusions of the referee are correct and that the judgment should be affirmed, with costs.

Mayham and Putnam, JJ., concur.  