
    William Duffus, Resp’t, v. Eli S. Bangs et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 2, 1890.)
    
    1. Fixtures—Nursery stock—Estoppel.
    Where nursery stock is planted "by a tenant upon leasehold premises for commercial purposes with the intention when the stock has grown to a sufficient size to take it up and sell it, the tenant has the right to do so at any time during the lifetime of the lease. And where the landlord, during the existence of the lease, told the plaintiff, the assignee of the tenant, that he could enter the premises and remove the stock m the spring after the lease had terminated, and the plaintiff, relying upon such promise, had allowed the stock to remain, the defendants would thereafter be estopped from claiming the ownership of the stock by reason of the termination of the lease, and should have afforded a reasonable and proper opportunity to remove the stock during that spring.
    2. Same—Chattel mortgage clause in lease.
    The fact that the lease contained a clause giving the defendants a lien upon the growing crops, fruits and grain to be raised upon the premises, as security for the rent that should become due, does not change the situation of the parties. ‘ (
    3. Same—Recording act.
    The lease was not filed in the office of the town clerk as a chattel mortgage, and the nursery stock was, up to the time that the lease was finally terminated, personal property, and not within the provisions of the recording act.
    Appeal from an order of the general term of the fourth department, reversing a judgment entered upon a non-suit and granting a new trial.
    
      T. K. Fuller, for app’lts; Walter S. MacGregor, for resp't
    
      
       Affirming 6 N. Y. State Rep., 553.
    
   Haight, J.

This action was brought to recover the value of a quantity of nursery stock which it is alleged was converted by the defendants.

It appears that the defendants had leased to Will & Co. a farm for the period of five years, on which Will & Co. had planted a 'nursery for commercial purposes; that thereafter and on the 26th day of November, 1878, Will & Co. executed and delivered to the plaintiff a chattel mortgage upon such nursery stock, which mortgage had subsequently been foreclosed and the stock bid in by the plaintiff. It further appears that Will & Co. neglected to pay the rent as it became due, and that thereupon proceedings were instituted by the defendants to recover the possession of the leasehold premises, and that such proceedings resulted in an order to dispossess Will & Co., bearing date the 5th day of March, 1879.

It is contended on the part of the plaintiff that whilst the warrant to dispossess was issued on the 5th day of March, it was not served, and possession by the tenant was, not surrendered thereunder at that time; that an arrangement was made by which the tenants should remain in possession, and that they did so remain in possession until after the 14th day of March thereafter; that on that date and whilst Will & Co. were in possession, the plaintiff had a talk with the defendant, Eli T. Bangs, in reference to the nursery stock and his interest therein, and that Bangs told him that he could come in the spring when the ground was not too wet and that he would let him take the stock up ; that subsequently and on the 23rd of April, 1879, he did go to the farm to remove the stock, and was then refused permission so to do.

The trial court, however, held that the issuing of the warrant to dispossess relieved the parties of the relationship of landlord and tenant and that there was nothing in the case showing that the subsequent possession of Will & Co. was by arrangement or by the consent of the lessors, who had by operation of the law been restored to their former rights. In this conclusion it appears to us that the trial court was at fault and that there were questions of fact which should have been submitted to the jury.

William F. Will in his deposition, read on behalf of the plaintiff, spealdng in reference to the proceedings to dispossess, said that the suit against Will & Co. was decided about the 5tli of March, 1879, and that afterwards he got an extension for a few days by paying five dollars, meaning, as we understand, that he got an extension of the lease. The plaintiff testified that he saw Mr. Bangs, the defendant, on the 14th of March, 1879, upon the farm in question, whilst Will & Co. were in possession, and had a conversation with him in which the defendant told him that if he would come in the spring when the ground was not too wet he would let him take the stock up. We do not understand that all of this testimony was controverted, but even if it was it would still raise a question for the jury to dispose of.

The nursery stock was planted by the tenants upon the leasehold premises for commercial purposes. It was their intention when the stock had grown to a sufficient size to take it up and sell it. This they had the right to do at any time during the lifetime1 of the lease. Their rights had by operation of the law passed to the plaintiff, who had become the owner of the stock at the time •of the demand and refusal of possession.

If therefore the defendants did, during the existence of the lease or any extension thereof, tell the plaintiff that he could enter the premises and remove the stock in the spring after the lease had terminated, and the plaintiff, relying upon such promise, had allowed the stock to remain, the defendants would thereafter be estopped from claiming the ownership of the stock by reason of the termination of the lease, and they should have afforded a rea-. sonable and proper opportunity to remove the stock during that spring.

Mo claim is made but that the 23rd of April was such reasonable and proper time.

Again, it does not appear to us that the fact that the lease contained a clause giving the defendants a lien upon the growing crops, fruits and grain to9be raised upon the premises as security for the rent that should become due changes the situation of the parties. The lease was not filed in the office of the town clerk as a chattel mortgage. It is true it was recorded in the office of the county clerk, and that as to subsequent purchasers and incumbrancers of the real estate such record was a constructive notice. But the plaintiff claims only the nursery stock and no interest in the real estate; such stock, as we have seen, was planted by the tenants with the intention to remove the same and sell it during the lifetime of the lease. They had in effect sold the stock to the plaintiff and he had the right to remove the same. It was, therefore, up to the time that the lease was finally terminated, personal property and not within the provisions of the recording act.

It is claimed, however, that the plaintiff had actual notice of this clause in the lease. This, however, he denies, so that the question of actual notice would have been for the jury instead of the court

These views render it unnecessary to consider the relation of the parties after the lease had been terminated and possession of the premises regained by the defendants, or whether the clause in the lease in reference to growing crops, fruit and grain, includes, “nursery stock.”

The order of the general term should be affirmed, with costs,, and judgment absolute ordered for the plaintiff upon the stipulation.

All concur, except Follett, Ch. J., and Vann, J., not sitting.  