
    John B. Manning, App’lt, v. Isaac C. Ogden et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 30, 1893.)
    
    1. Fixtures—Mortgagee and chattel mobtgagee.
    As between the mortgagee of real estate and a chattel mortgagee, carpets, curtain poles and gas fixtures, with their attachments, are movables and not fixtures.
    2. Same.
    Whether ranges, hot-water boilers, sinks and washtubs are fixtures or movables, as between such parties, depends upon when and how they were-attached to the house.
    Appeal from order denying plaintiff’s motion to restrain the defendant Ogden from removing certain property from the premises Nos. 252 and 254 West Eighty-fifth street.
    
      Rabe & Kellar, for app’lt; Charles De Hart Brower, for resp’ts.
   Per Curiam.

August 2, 1892, Eliza Beaudet and Homer I. Beaudet executed a bond to the plaintiff whereby they bound themselves to pay $28,000, and as collateral thereto they executed on the same day a mortgage to the plaintiff on two apartment houses, which mortgage was duly recorded on the day of its date. Afterwards the mortgagor conveyed the premises, subject to the mortgage, to William D. Hotchkiss, by a deed which was duly recorded November 2, 1892. On the 1st day of September, 1892, Hotchkiss conveyed the premises, subject to said mortgage, to James H. Marr, by a deed dated that day, which was recorded November 2, 1892. January 23, 1893, James H. Marr, to secure payment of $1,830, executed to Isaac C. Ogden, defendant, a chattel mortgage on the gas fixtures, ranges, carpets, hot-water boilers, sinks, washtubs, radiators and curtain poles contained in the apartment houses. This action was begun April 1, 1893, for the collection of the $28,000 secured by the bond, and for the foreclosure of the collateral mortgage. The grantors and grantees in the conveyances mentioned are parties to this action, except James H. Marr, who was made a defendant, but has since died.

The question involved in this appeal is whether the articles included in the chattel mortgage are fixtures or movables. Beyond question the carpets and curtain poles are movables, and so are the gas fixtures, with their attachments. McKeage v. Hanover Fire Ins. Co., 81 N. Y., 38 ; Shaw v. Lenke, 1 Daly, 487. The rule declared in the cases cited has not received the sanction of courts in some jurisdictions. Fratt v. Whittier, 58 Cal., 126; Sewell v. Angerstein, 18 L. T., N. S., 300 ; Johnson v. Wiseman, 4 Metc. (Ky.), 357 ; Hays v. Doane, 11 N. J. Eq., 84. Whether the ranges, hot-water boilers, sinks and washtubs are fixtures or movables, as between the holder of the real estate mortgage and the chattel mortgagee, depends upon when and how the articles were attached to the houses. Often a particular article may be so attached to and used in connection with the realty as to become a fixture, and pass with the realty, as between vendor and vendee, or as between mortgagor and mortgagee, but in other cases they may be so used as not to pass with the realty. Each case must depend on its own peculiar facts. We regard the question involved an important one, and it should not be determined upon affidavits, but left to be disposed of after the trial of the issue. Should the evidence justify the holding that these articles are a part of the realty, the damage to it by their removal would be great, and we think the special term erred in refusing to restrain, during the litigation, the removal of these articles, and that part of the order should be reversed, and a temporary injunction granted, restraining the defendant, Ogden, from removing from the premises the hot-water boilers, sinks, washtubs and radiators, and, as modified, the order should be affirmed, without costs to either party.

Van Brunt, P. J., Eollett and Parker, JJ., concur.  