
    East New York Refrigerator and Woodworking Company, Respondent, v. Albert Halpern and Camden Construction Company, Appellants.
    Second Department,
    October 20, 1910.
    Mortgage — vendor’s lien under conditional sale — when lien of building loan mortgage superior.
    The lien of a building loan mortgage on mantelpieces subsequently sold to the owner under a contract of conditional sale and actually annexed to the realty, is superior to the lien of the conditional vendor if the mortgagee had no knowledge of the conditional contract when making advances under the mortgage. So, too, the purchaser on the foreclosure of the mortgage has a superior title, although the contract of conditional sale was filed prior to the foreclosure, as the title of the purchaser is measured by that of the mortgagor and mortgagee at the time of the execution of the instrument.
    Appeal by the defendants, Albert Halpern and another, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 23d' day of February, 1910.
    
      L. B. Boudin, for the appellants.
    
      S. C. Sugarman, for the respondent.
   Carr, J.:

This action was brought to foreclose a lien upon alleged personal property in the possession of the defendant the Camden -Construction. Company, and judgment was rendered for the plaintiff. The plaintiff is the assignee of a cause of action held by a firm known as Silberstein & Silver. This firm sold to one Halpern 110 oak mantels, to be affixed to certain buildings then under construction in the borough of Brooklyn. The nature of the articles was such that they were to become a part of the structure. The vendors claimed, however, that by the contract of sale title was to remain in the vendor until the articles were fully paid for. The mantels were delivered and affixed to the structures, and the property is now in the possession of the defendant the Camden Construction Company. The plaintiff claims a balance due of the sum of $480 on .the contract of sale, and seeks to enforce a lien accordingly. The defendants deny that the sale was conditional, and, at the trial, this question was bitterly contested, involving charges of perjury and of forgery in the alleged fraudulent alteration of the contract of sale. Because of a question of law, determining this appeal, it is unnecessary to inquire into how far the learned trial court was justified in accepting the plaintiff’s proofs as to the nature of the sale. The contract of sale was made on October 15, 1907, and the mantels provided for were all delivered and set up in the premises prior to February 14, 1908. At the time the contract was made the real property was subject to a building loan mortgage, on which various advances were made to the owner by the mortgagee between October 15, 1907, and February 14, 1908, aggregating over $20,000. All these advances were made without any knowledge by the mortgagee of the existence of any contract of conditional sale between Halpern, the owner, and the plaintiff’s assignors Many of the advances were so made after the mantels were delivered and set up in the buildings, and prior to the filing of the contract of conditional sale in the office of the register of Kings county, in which county the buildings were situate. Under these circumstances the sale was not conditional, but absolute, so far as the mortgagee was concerned. This was" expressly so provided by section 112 of the Lien Law (Gen. Laws, chap. 49; Laws of 1897, chap. 418), as amended by chapter 698 of the Laws of 1904, and as in force at the time of the transaction. The defendant the Camden Construction Company acquired title to the lands and buildings under a judgment of foreclosure and sale of the premises under the provisions of the building loan mortgage. It is immaterial that at the time of the sale under the foreclosure judgment, the alleged contract of conditional sale was then on file, for the purchaser at the sale took such title as was in the mortgagor and mortgagee at the time of the execution of the instrument, or, at least, certainly at the time the advances under the mortgage were made. (Rector, etc., Christ P. E. Church v. Mach, 93 N. Y. 488; Batterman v. Albright, 122 id. 484; McFadden v. Allen, 134 id. 489.) It follows, therefore, that the plaintiff has no lien on the mantels in question which it can assert against the defendant the Camden Construction Company, the purchaser at the foreclosure sale.

The judgment should be reversed and a new trial ordered, costs to abide the event.

Hirschberg, P. J., Woodward, Burr and Rich, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  