
    Colwell Lead Company, Respondent, v. Home Title Insurance Company of New York, Appellant.
    (Appeal No. 1.)
    First Department,
    December 6,1912.
    Sale — conditional sale — pleading — demurrer to separate defenses — when complaint taken as true — when fixtures sold on conditional sale do not pass on foreclosure of mortgage on realty — constructive notice to purchaser — failure of vendor to refile conditional bill of sale.
    Where separate defenses do not deny any of the material allegations of the complaint, the latter must be accepted as true in determining the sufficiency of the defenses upon a demurrer thereto.
    Where subsequent to the execution of mortgages upon real property fixtures were installed in buildings thereon under a contract of conditional sale, duly filed pursuant to the statute, whereby title was to remain in the vendor until full payment of the purchase price, they remained personal property, and title did not pass to the purchaser of the premises on the foreclosure of the mortgages.
    Hence, it is no defense to an action for the conversion of said fixtures brought against the purchaser on foreclosure, which in its turn sold the premises, to set out as a separate defense that as between the mortgagor and mortgagee the mortgages were to cover the fixtures and that the conditional vendor, made a party defendant in the foreclosure suits as one having or claiming to have a lien subordinate to the mortgage, made default in pleading and that notice of the foreclosure sale was served upon him, etc. This is true although the contract of conditional sale contained no express provision authorizing the vendor to reclaim the fixtures.
    As the conditional bill of sale, having been duly filed, was in full force at the time of the foreclosure, the purchaser was chargeable, with notice thereof.
    But, it seems, as the fixtures were installed in the premises for use, the . owner or other person lawfully in possession was not guilty of conversion in using them, nor under any obligation to remove them and redeliver to the conditional vendor prior to any demand for a return upon his part. Hence, conveyances of the realty did not constitute a conversion.
    However, where on the expiration of a year from the time the bill of sale was filed the vendor did not refile the same, the sale became absolute by virtue of the statute, except-as to a subsequent grantee who had actual notice thereof.
    Appeal by the defendant, the Home Title Insurance Company of New York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of April, 1912,. upon the decision of the court, rendered after a trial at the New York Special Term, sustaining plaintiff’s demurrer to three separate defenses designated first, second and third, contained in' defendant’s answer on the ground that they are insufficient in law on the face thereof.
    
      Harry Percy David, for the appellant.
    
      Robert B. Honeyman, for the respondent.
   Laughlin, J.:

The plaintiff alleges that on or about the 1st day of October, 1910, at the special instance and request of one Cery adora, the owner of certain premises situated at the southwest corner of Maple and East Forty-eighth streets, borough of Brooklyn, New York, it furnished and delivered certain bathroom and plumbing fixtures, described in a conditional bill of sale, a copy of which was annexed to the complaint, of the agreed price and value of $1,100, to be installed and which were installed in the building on said premises; that prior to the delivery of the fixtures the conditional bill of sale bearing date the 27th day of September, 1911—.evidently 1910 was meant for its execution in the month of September, 1910, was duly certified and it was filed the same month — was executed and was duly filed with the register of the county of Kings on the 30th day of September, 1910; that prior thereto and on the 17th day of February, 1910, the owner had executed and delivered to the defendant six mortgages on said premises as security for an indebtedness due from him to it; that on or about the 24th day of January, 1911, the defendant brought six actions to foreclose said mortgages, and, pursuant to decrees of the court duly made therein, the premises were sold at public auction on or about the 15th day of September, 1911, and bid in by the defendant to whom the referee duly executed deeds thereof on the 25th day of September, 1911, whereupon the defendant entered into the possession of the premises, and, on or about the third day of November thereafter, with full knowledge of the conditional bill of sale and of the fact that the fixtures had not been paid for and without the consent and authority of the plaintiff, “sold and delivered said fixtures to one Andrew De Gruiseppe; ” that plaintiff has duly demanded of the defendant the return and possession of the fixtures, which has been refused, and that the defendant claims title thereto. Judgment is demanded for the value of the fixtures, on the ground that they were unlawfully converted. By-the conditional bill of sale it appears that the bathroom and plumbing fixtures which the plaintiff sold to the owner of the premises, who was the mortgagor, and which were installed in said building, consisted .of one dozen toilet closets, and the same number of galvanized sinks, of cement trays, of lavatories, of bath tubs,- and of hot water boilers, all complete; but it was therein provided that the fixtures were to remain and continue to-be the property of the plaintiff, and that the title should not pass from it until full payment of the purchase price, at which time the plaintiff was to execute an absolute bill of sale of the fixtures. It is not alleged in the complaint that the plaintiff was made a party defendant in the foreclosure actions. The amended answer puts in. issue many of the material allegations of the complaint, including the allegation that the plaintiff sold and delivered the fixtures; but there is no denial of any of the material allegations of the complaint in any - of the separate defenses, and, therefore, for the purpose of determining the sufficiency thereof the allegations of the- complaint must be accepted as true. The defendant alleges for a first separate defense that the mortgages were given pursuant to a building loan agreement and' that the indebtedness secured by each mortgage was represented by a bond; that the building loan was made with reference to plans and specifications for the construction of the building on these premises including fixtures of the character of those described in the complaint, and, in effect, that as between the mortgagor and mortgagee the mortgages were to cover such fixtures; that the plaintiff was duly" made a party defendant in the foreclosure actions and that the summonses and complaints therein were duly served upon it and upon the owner, and that the plaintiff duly appeared therein by attorney, but made default in pleading; that it was alleged in each of the complaints in the - foreclosure actions that all of the defendants “have or claim to have some interest in or lien upon the said mortgaged premises or some part thereof which interest or lien if any has accrued subsequently to the lien of said mortgage, and is subject and subordinate thereto,” and judgment was demanded that the defendants therein be barred and foreclosed “óf all right, claim, lien and equity of redemption in the said mortgaged premises,” and the judgment so provided; that notice of the sale was duly advertised and duly served upon the attorney for this plaintiff as a defendant in the foreclosure action, and that the premises were sold at public auction to the highest bidder and were bid in by the mortgagee, the defendant herein, and it received the referee’s deed, and thereafter and on the 3d day of November, 1911, executed and delivered “its bargain and sale deed in the statutory short form” to one De G-uiseppe “conveying the real property mentioned in the complaint,” and that prior to such conveyance no demand for the return of the fixtures was made by the plain-. tiff upon the defendant, and that the defendant was not a party to the bill of sale and did not consent thereto. For a second separate defense the defendant alleges, by reference, all of the facts alleged in its first- defense, excepting the fact that it did not execute or consent to the execution of the conditional bill of sale; and for a third separate defense it alleges, by reference, all the facts alleged .in the second defense, and further, in substance, that no renewal of the conditional bill of sale was filed in the office of the register of the county of Kings within thirty days of the expiration of the term of one year from the time the original was filed.

I am of opinion that the defenses to which the demurrer relates are insufficient. As already observed, there is no denial in any of them that the defendant sold the fixtures as alleged in the complaint. If defendant did sell them, as it thus admitted, it is liable for conversion, nnless the foreclosure judgments cut off plaintiff’s title. If on the facts alleged in the complaint and in these separate defenses the plaintiff lost title to the property, then the demurrers should have been overruled, for a demurrer searches the pleadings, and on that theory the complaint would not state a cause of action.

The decision of the appeal depends mainly upon the construction of sections 62 and 64 of the Personal Property Law (Consol. Laws, chap. 41; Laws of 1909, chap. 45); and we are without precedent to aid us. Section 62 of the Personal Property Law declares, in effect, that every agreement by which it is attempted to retain the title to personal property in the vendor after delivery shall be void as against subsequent purchasers, pledgees or mortgagees in good faith, and that as to them such sales shall be deemed absolute unless the contract, or a true copy thereof, he filed as required by the provisions of article 4 of the statute in which said section is contained, and unless “ the other provisions of the Lien Law applicable to such contracts are duly complied with; ” and further provides, among other things, as follows: Every such contract for the conditional sále of any goods' and chattels attached, or to be attached, to a building, shall be void as against subsequent bona fide purchasers or incumbrancers of the premises on which said building stands, and as to them the sale shall be deemed absolute, unless, on or before the date of the delivery of such goods or chattels at such building, such contract shall have been duly and properly filed and indexed as directed -in this article and unless said contract shall contain a brief description, sufficient for identification, of the premises which said building occupies, or upon which said building stands, and if in a city or village its location by street number, if known, and if in a city or county where' the block system of recording and indexing conveyances is in use, the section and block within which it is located.”

.Section 64 of the Personal Property Law provides for the indorsement, entry, refiling and discharge of contracts for the conditional sale of “goods and chattels, attached or to be attached to a building,” and provides, among other things, that the officer with whom the contract is filed shall “enter” the future contingency or event required to occur before the ownership of the goods and chattels shall pass, the amount due and time when due, and shall file such contract, and indorse thereon its number and time of receipt, and shall enter in a book provided for that purpose “ in separate columns, the names of all the parties to each contract so filed, arranged in alphabetical order, under the head of ‘ vendees ’ and ‘ vendors,’ the number of' such contract and the 'date of the filing thereof, and under a column headed c property,’ they shall enter a brief description sufficient for identification of the land upon which said building stands, and if in a city or village, its location by street and number, if known, and if in a city or county where the block system of recording and indexing conveyances is in use, the section and block in which the said land is situated,” and shall keep an index “so as to afford correct and easy reference to the books containing the entries in regard to such last named contracts.” Said section further provides with respect to such -contracts as follows: “A contract for the conditional sale of goods and chattels, attached or to. be attached to a building, shall be invalid as against creditors of the conditional vendee and against subsequent purchasers or mortgagees in good faith, of such goods and chattels, or of the premises upon which the said building stands, after the expiration of the first or any succeeding term of one year, reckoning from the time of the first filing, unless: (1) within thirty days preceding the expiration of such term a statement containing a description of such contract, the names of the parties, the time when and place where filed, the interest of the conditional vendor, or of any person who has succeeded to his interest in the property, claimed by virtue thereof; or (2) a copy of such contract and its indorsements, together with a statement attached thereto- or indorsed thereon, showing the interest of the conditional vendor, or of any person who has succeeded to his interest in the contract, is filed in the office where the contract was originally required to be filed; and the officer with whom such contract was originally filed shall enter, in a separate column, in the book above provided for, in a column headed ‘ date of refiling,’ the date of the refiling of the said contract. * * * Upon the title to the goods and chattels affected by any such last mentioned contract becoming absolute in the conditional vendee or his successor in interest by the payment of the full consideration for which any such contract was made, the conditional vendor, his assignee or legal representative, upon the request of the conditional vendee or of any person interested'in the property covered by such contract, must sign and acknowledge a certificate setting forth such payment. The officer with whom such contract is ffied must, on receipt of such certificate, file the same in his office and write the word discharged ’ in the book where the contract ts entered, opposite the entry thereof, and the contract is thereby discharged.”

In behalf of the appellant it is contended in effect that the respondent is concluded by the judgments in the foreclosure actions, and that having failed to set up and establish its title therein, and have the premises sold subject to its rights or with a provision by which the indebtedness to it should be paid out of the proceeds of sale, it has lost title and cannot maintain an action for conversion. In behalf of the respondent attention is drawn to the authorities which hold that where a prior lienor is joined as a party defendant and it is merely alleged generally in the complaint, as in the case at bar, that he has or claims to have a lien, which lien, if any, is subordinate to the rights of the plaintiff, and without any allegation challenging his rights as they appear of record, his lien will not be affected by the decree even though he makes default in pleading or fails to establish the priority of his lien (See Jacobie v. Mickle, 144 N. Y. 237; Emigrant Industrial Savings Bank v. Goldman, 75 id. 127; Goebel v. Iffla, 111 id. 170; Cromwell v. MacLean, 123 id. 474), and it is contended on those authorities that the rights of the respondent were not affected by the decrees in the foreclosure actions for they had heen preserved as required by the statute. In Fitzgibbons Boiler Company v. Manhasset Realty Corporation (125 App. Div. 764), where fixtures consisting of steam heating boilers were sold and installed in a building under a conditional bill of sale by which the title was to remain in the vendor until full payment of the purchase price should be made and he was at liberty to remove the boilers if default should be made in such payment, this-court held by a majority vote that a purchaser for full value and without notice acquired good title as against the vendor of the fixtures. Mr. Justice Scott dissented from that decision upon the ground that owing to the provisions of the conditional bill of sale the fixtures- never lost their character as personal property and that title thereto did not pass with the real estate, and that, therefore, the failure by the innocent purchaser. of the premises to deliver the fixtures to the vendor on demand constituted a conversion thereof; and the Court of Appeals reversed our decision on the dissenting opinion (198 N. Y. 517). The only difference between the conditional bill of sale in that case and in the case at bar is, that this conditional bill of sale contains no express provision authorizing the vendor to take possession of the fixtures. I am of opinion, however, that that does not distinguish the case for it.is manifest that while the vendor retained the title it had the right to reclaim the fixtures. The facts in Fitzgibbons Boiler Company v. Manhasset Realty Corporation (supra) were quite like those in the Case at bar. In that case there was a mortgage on the premises when the fixtures were installed and it was foreclosed and the mortgagee bid in the prehiises and conveyed them to the defendant who took title without notice or knowledge of the conditional bill of sale; but it did not appear that the conditional vendor in that case was made a party to the foreclosure action. I am of opinion that the plaintiff’s title was not affected by the decree in the foreclosure actions. The conditional bill of sale was in full force at that time, and the statutory provisions with respect to filing it had been complied with. The purchaser at the foreclosure sale was, therefore, chargeable with notice of it. By virtue of the conditional bill of sale the fixtures remained personal property and they did- not pass by the referee’s deeds on the foreclosure of the mortgages. The fixtures were installed in the premises for use. The owner or other person lawfully in possession would not be guilty of conversion for using them. I am of opinion that neither the owner of the premises nor the purchaser on the foreclosure sale was under any obligation to remove the fixtures and redeliver them to the plaintiff. They might well await a .demand on the part of the plaintiff for the return of the fixtures. It would seem to follow that the defendant had a right not only to use the fixtures but to sell the premises at any time, and the mere conveyance of the realty would not constitute a conversion unless by the conveyance its grantee acquired title to the fixtures. The original filing of the conditional bill of sale was not notice to the defendant’s grantee, for the statutory steps required to renew it at the expiration of the year had not been taken. The year having thus expired, by virtue of the provisions of sections 62 and 64 of the Personal Property Law the sale of the fixtures by the plaintiff is deemed to have been absolute unless the grantee of the defendant had actual notice of the conditional bill of sale, and with respect to this there is no allegation either in the complaint or in any of the separate defenses. The allegation that the defendant sold the fixtures, therefore, is not destroyed by the other allegations of the complaint with respect to the conveyance of the premises, and since it is not denied in the separate defenses they are insufficient. When the transactions involved in Fitzgibbons Boiler Company v. Manhasset Realty Corporation (supra) occurred, the statute did not provide for filing such conditional bills of sale or contain the declaration that in the absence of such filing and renewal the sale should be deemed absolute as to subsequent purchasers or lienors without notice. Were it not for those changes in the statute, it would seem that under the decision in the Fitzgibbons Company Case (supra) the plaintiff could not be divested of title by a transfer of the premises to an innocent purchaser; but in view of the amendments to the statute it would seem quite clear that the defendant’s grantee took good title to the fixtures if it purchased without actual notice of the conditional hill of sale, as' owing to plaintiff’s failure to renew the filing a purchaser was not chargeable with constructive notice.

It follows that ■ the. interlocutory judgment should he affirmed, with costs, with leave to the defendant to serve an amended answer on payment of costs in this court and in the court below.

Inq-raham, P. J., McLaughlin, Miller and Dowling, JJ., concurred.

Judgment affirmed, with, costs, with leave to defendant to serve amended answer on payment of costs.  