
    Andrews v. Day Button Co.
    
      (Supreme Court, General Term, Second Department.
    
    February 12, 1890.)
    Fixtures—Between Landlord and Tenant.
    The lessor of a factory refused to put in, or contribute to the expense of, a new engine, but offered to consent to the change on the condition the engine should belong to him. Without assenting to this, the lessee put a new engine on the old foundation in such manner that it could be removed without injury to the building. Held, that the new engine did not become part of the freehold, but remained the property of the lessee.
    Appeal from special term, Queens county.
    Action by J. Frederic Andrews against the Day Button Company to restrain it from removing an engine from a factory it had leased of plaintiff. There was judgment for defendant, from which plaintiff appeals.
    Argued before Barnard, P. J., and Dykhan, J.
    
      
      Billings & Cardozo, for appellant. Rose & Putzel, for respondent.
   Barnard, P. J.

The evidence sustains the finding that the new engine was put into the place of the old one without any agreement that the new one should belong to the landlord. The landlord was applied to to put in the new engine himself, and refused. He was requested to contribute to the expense, and he refused that. He offered to consent to the lessee’s making the change upon the condition that the engine should belong to him. There was no assent to this, and the lessee put in the engine on the old foundation, and removed the old engine. Although the tenant put in the new engine after he received a letter containing this condition, the evidence is plain and abundant that the tenant never accepted this condition, but exercised such right in respect to the change as he had as a tenant hiring manufacturing premises for use as such. A tenant has the right to erect a new building on the rest of the demised premises, and to remove the old from it so as to permit this improvement without waste. Winship v. Pitts, 3 Paige, 259. A building erected for the purpose of trade or manufacture may be removed by the tenant. Ombony v. Jones, 19 N. Y. 234. The tenant may put in an engine, and remove it at the end of the term. Kelsey v. Durkee, 33 Barb. 410. The tenant may remove a chimney, and the machinery put in for the purposes of •trade. 2 Rev. St. (2d Ed.) p. 24, § 6. The title to the new engine was never, therefore, in the landlord. There is no reason to distinguish this case from those cited because the buildings or engine was put in a vacant place, and was not substituted for another similar structure or implement of trade. Admit that the tenant had the right to put up a new foundation, and place an engine upon it, and connect it with the mill. He may substitute a new article for a worn-out one, and he may remove a dangerous engine, and put in a safe one in its place, always subject to the condition that the same could be put in and taken out readily. The proof is clear in this case that the engine could be removed without injury to the building, and that fact is so found. There was no intention to make the new engine real estate, and that fact is found, and the evidence sustains the finding. The clause in the lease that the tenant would make no alterations in the premises is not material to the question. The tenant’s rights depended in all cases upon the fact that the article annexed should not materially injure or affect the real estate, and that the removal can be made without any injury thereto. The judgment should therefore be affirmed, with costs.  