
    Arthur Marder, Appellant, v. Adam Heinemann, Respondent.
    Second Department,
    July 24, 1906.
    Landlord and tenant— conversión of trade fixtures.
    A landlord who permits his tenant to move a large ice-hox into the building by the removal of a plate glass window, which was the only way to get it in, is deemed to have assented to its removal in the same manner at the expiration of the term. A refusal to permit the removal in such manner is a conversion.
    Appeal by the plaintiff, Arthur Harder, from a judgment of the Hunicipal Court of the city of Hew York in favor of the defendant.
    The action was by tenant against landlord for the conversion of an ice box. The defendant leased a store to the plaintiff, who carried on in it the business of retail dealer in butter and eggs. The ice box he put in for his business being too large to go through the door, he took out the large plate glass which formed part of the front of the store, and was set in the building itself, instead of in a movable sash, and put the ice box in through the opening, and replaced the plate glass. The defendant was present while the ice box was being put in in that way, and did not forbid or prevent it, but only asked who was to repair the damage by the removal of the glass, the,plaintiff saying he would. When the tenant was moving out at the end of the term the defendant prevented him from taking the ice box out in the way he took it in and there was no other way to take it out. It could not be taken apart without being destroyed, or greatly inj ured.
    
      Robert H. Roy, for the appellant.
    
      Fenton Rockwell, for the respondent.
   Gaynor, J.:

The refusal of the defendant to allow the plaintiff to remove the plate glass to take out his ice box was a conversion thereof. By assenting to the removal of the plate glass to take the ice box in, the defendant assented to the taking of it out in the same way (Kelsey v. Durkee, 33 Barb. 410).

The judgment should be reversed.

Woodward, Jbnks, Hooker and Miller, JJ., concurred.

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