
    Louise Lange, Appellant, v. Francis L. Pisch, Respondent.
    (New York Common Pleas—Additional General Term,
    August, 1894.)
    The question as to whether articles affixed to the premises by a tenant are fixtures does not arise as between the landlord and one who sold such goods to the tenant if the title to the articles is actually in the latter. Where the terms of sale are cash on delivery, title to the goods does not pass on a mere delivery without payment, in the absence of any waiver of the condition by the vendor.
    Appeal from a judgment of the District Court in the city of ¡Eew York for the seventh judicial district, rendered by the justice, without a jury, in favor of the defendant.
    Action for conversion of certain lamps.
    
      Byram, L. Winters, for appellant.
    
      Charles Meyers, for respondent.
   Bischoff, J.

Defendant sold and delivered to one Hack certain lamps, the chattels in suit, which were by the latter affixed to the premises held by him under a lease from the plaintiff. Mack was subsequently dispossessed from the premises and thereafter died, no payment for the chattels having been made by him to defendant and no demand for such payment having been made by defendant at any time of the representatives of the deceased.

Defendant instituted an action for replevin of the chattels, against the son of the plaintiff herein, and at the commencement of such action obtained possession of the lamps through seizure by a marshal; the replevin action was then discontinued upon this defendant’s motion, and suit is now brought for conversion of such chattels.

The justice below rendered judgment in favor of the defendant, and upon this appeal but two questions are raised by counsel: 11 First, were these chattels to be viewed as fixtures of a character which precluded their removal from the freehold, and, second, had title passed from defendant to Mack upon the sale referred to ? The question whether or not these. lamps were “ fixtures ” is not to arise between the parties to this action if the title to the chattels was actually in defendant (Tyson v. Post, 108 N. Y. 217, 221), and it becomes merely á question whether or not title had passed from defendant to Mack when the goods were delivered by the former to the latter.

It would appear that plaintiffs possession of the chattels was, in this case, sufficient to form the basis of an action for conversion, and inquiry is to be directed toward the sufficiency of defendant’s evidence to establish the defense of title.

In support of this defense defendant gave evidence showing that the sale to Mack had been upon express terms of cash on delivery, and it thus appears that the legal title to the chattels was not transférred upon the delivery, no payment having been made by the vendee and the condition appearing in no way to have been waived by the vendor. Empire State T. F. Co. v. Grant, 114 R. Y. 40.

The justice having credited defendant’s testimony in this regard, the judgment must be held to rest upon sufficient' evidence.

The exceptions taken by ajipellant to rulings upon the trial ■are not relied upon nor discussed by counsel in support of the appeal, and, therefore, have not been made the subject of consideration.

The judgment should be affirmed, with costs.

Bookstaveb, J., concurs.

Judgment affirmed, with costs.  