
    Lawrence v. Kemp.
    (Before Oakley, Ch. J., Paine and Bosworth, J. J.)
    Nov. 11;
    Dec. 11, 1852.
    Gas fixtures and sitting stools, when placed by a tenant in a shop or store, although fastened to the building, are not fixtures, as between the tenant and landlord.
    They are the property of the tenant and may be removed by him not only during the term but after its expiration. He may pass a title to them by a chattel mortgage, and they may be levied on under an execution against him as his personal property.
    When a subsequent tenant in possession of a store containing such articles, the property of a former tenant, is sued by the landlord for not delivering them to him at the expiration of his term, he may defend himself by showing that they had been mortgaged by the first tenant, and that the mortgagee had entered and removed them.
    Even when such subsequent tenant had bound himself by an agreement in writing to deliver the articles to the landlord at the expiration of his term, he is liable only for nominal damages, when he proves a paramount title in the mortgagee by whom they were removed.
    
      Held, that the judge upon the trial erred in excluding such a defence, and a new trial therefore granted.
    Appeal by the defendant from a judgment at special term, on a bill of exceptions.
    The complaint alleged that the plaintiff, on or about the 7th of June. -1850, let to the defendant a certain store known as No. 379 Broadway, with the fixtures therein, until the 1st day of July following, and that the defendant agreed to deliver up said store with all the fixtures therein to the plaintiff, at the expiration of his term—th'at the defendant’s term had expired, and that "he had not complied with his agreement by delivering up the store with the fixtures, but, on the contrary, in violation of his agreement, had removed therefrom ¿ertain of said fixtures, to wit, -gas fixtures of the value of $200, and seventy stools of the value of $210, or $3 each. The plaintiff therefore claimed damages to the amount of $410, and demanded judgment for that sum, with interest, from the 5th of July, 1850.
    The defence set up in the answer was, that the articles mentioned in the complaint belonged, on the 25th of May, 1850, to George Stewart and James W. Patterson, and on that day, by a mortgage duly entered and filed, were mortgaged by them to one Harvey A. Newcomb, who before the first day of July took and received the said articles by virtue of his mortgage. It also averred that these articles were not fixtures within the true intent and meaning of the contract between the plaintiff and defendant. The reply took issue on all the material allegations in the answer, and averred that the defendant, by the terms of his agreement, was estopped from denying the plaintiff’s title.
    The cause was tried before Mr. Justice Paine and a jury on the 6th of April, 1852.
    Upon the trial the counsel for the plaintiff gave in evidence the following written agreement and receipt, the execution of which was admitted.
    “ Received, New York, June 7,1850, from R. C. Kemp, four hundred dollars, for the rent, till the 1st day of July, of the store lately occupied by George Stewart, at the corner of Broadway and White street, with the fixtures therein. It is understood that I am to have possession of the said store on my giving three days’ notice, at any time before .the said first day of July, 1850, in which I am to refund to the said Kemp so much of the above sum as may be equal to $11,Vo for every day that may be unexpired at the time of the delivery to me of possession on the first day of July, and that the store is to be delivered with all the fixtures which are now therein, unless taken out by process of law, of which Mr. Kemp agrees to give me timely notice, at 498 Broadway. It is also understood, that in case I should not require possession of the said store on or before the said first day of July, and the said Kemp should continue to occupy the same, he is to pay, in addition to the sum now paid, at the rate of $4,000 per annum, from the first day of July, until he delivers up possession thereof, which he & to do at any time on receiving three days’ notice.
    W. B. Lawrence.
    “I do hereby declare, that I enter into possession of the above described premises, by virtue of the agreement contained in the above receipt or memorandum, and hereby agree with the above-named W. B. Lawrence, that I will on my part perform the conditions thereof.
    “R. 0. Kemp.
    “ New York, June 7th, 1850.”
    It was then proved that the articles mentioned in the complaint were in the store when the defendant took possession under the above agreement, and had not been delivered up by him at the expiration of his term.
    The counsel for the defendant then offered to prove that the articles in question were put in the store by the former tenants, Stewart & Patterson; that they were duly mortgaged by them to Newcomb, and were removed by him in the exercise of his legal right as a mortgagee; they also offered to prove that, by the general understanding between landlords and tenants, the articles in question were not deemed to be fixtures.
    The learned judge decided that the articles in question were fixtures within the meaning of the agreement between the parties, and that unless the defendant could show that they had been removed by due process of law, he was precluded by the terms of his agreement from setting up a paramount title in any third person. He therefore overruled the whole defence as offered, and instructed the jury that the only question' for them to determine, was the amount of the damages to which the plaintiff was entitled. The jury found a verdict for the plaintiff, for
    The counsel for the defendant duly excepted to the ruling and charge of the judge, and upon these - exceptions the cause was now heard.
    
      D. P. Hall, and D. D. Field, for defendant.
    
      J. W. Gerard, for plaintiff.
   By the Court. Bosworth, J.

This action is brought to recover the value of certain “gas fixtures” and of “seventy stools.”

Such articles, when placed by a tenant in a demised building during his term, are his property. If not removed by him during the term, they do not, for that reason, cease to be his property. He may remove them after his term expires without subjecting himself to any damages for such removal, even though he be liable to an action of trespass for'an entry on the demised premises. He may mortgage them during his term by a personal mortgage, and they may be levied upon by an execution issued on a judgment, recovered against him. (Holmes v. Tremper, 20 J. R. 29; Reynolds v. Shuler, 5 Cowen, 323; Smith v. Jenks, 1 Coms. 96; Farrar v. Chauffette, 5 Denio, 527; 2 R. S. 24, § 6, sub. 4, 2d ed.)

The answer avers, and on the trial the defendant offered to prove, that on the 25th of May, 1850, these articles were owned by Stewart & Patterson, and that the plaintiff never owned them, ndr had any interest in them. That Stewart & Patterson, on the day last named, mortgaged them to Newcomb; that the mortgage was duly filed, and that Newcomb, as such mortgagee, took and removed them after the hiring of the store by the defendant.

We are of the opinion that these facts, if proved, assuming the mortgage to be valid, as we must do for all the purposes of this motion, would constitute a defence to the plaintiff’s. action.

If such were the facts, thp articles were taken from the defendant by paramount authority. They were taken by the true owner, in the exercise of his rights of absolute property. Such a taking discharges the defendant from his promise to return them to the plaintiff, who is thus shown to have had no interest in them, ’and to have no right to require the defendant to return them after they have been taken by one from whom neither the plaintiff nor the defendant has any right or power to reclaim them. (Edson v. Watson, 7 Cowen, 278.)

• If this could be regarded as a taking by process of law, within the meaning of those terms as used in the agreement or lease of June 7,1850, the damages to which the defendant would be liable for not having given notice of the taking, would be nominal only, if the facts were as the defendant alleges them in his answer.

The complaint doés not aver any breach of the contract arising from the defendant’s neglect to give the notice. The complaint seeks to charge the defendant with the yalue of the property, on the grounds that he has not returned it as he promised to do, hut that, on the contrary, he has removed it from the premises.

The defendant should have been permitted to prove that these articles were the property of Stewart & Patterson on the 25th of May, 1850, and that on that day they mortgaged them by a valid personal mortgage to Rewcomh.

If he gave such evidence of these facts as would justify a jury in' finding them in his favor, the only question that would remain in the case, as it is now presented to us, would he, were they taken away by the mortgagee in the exercise of his rights as mortgagee ? Or were they, in fact, removed by the defendant ?

If the removal was in substance and in fact made by the defendant, and the allegation of their having been removed by the mortgagee is a mere pretence, and what the mortgagee said and did was said and done at the instance of the defendant, and as a mere cover for his intended failure to perform his contract with the plaintiff, he would he liable for the value of the articles, if they were intended by the parties to he embraced in their agreement of the 7th of June.

If they were delivered by the plaintiff into the possession of the defendant under that contract, and accepted by the latter under it, we think the defendant would he bound to return them, unless he can justify his omission to do so by proving the facts alleged in his answer. (Demick v. Chapman, 11 J. R. 132; Cook v. Howard, 13 ed. 276; Hammer v. Wolsey, 17 Wend. 91.)

If the removal was in reality the act of the mortgagee, any mere assistance and aid rendered by the defendant, at his request, which any third person might justifiably and properly have rendered at the like request, and necessary to secure the removal of the goods, would not render him liable to the plaintiff, if, on and at such removal, the mortgagee reduced them to possession, and took the actual control of them as such mortgagee.

In an action of trespass for wrongfully taking personal property from the possession of the plaintiff, it has been held to be no defence to the action, that it belonged to a third person; and that in such a case the plaintiff is entitled to recover its full value. In Otis v. Jones, 21 Wend. 394, it was held that the defendant could not justify such tortious taking or mitigate damages, by showing that he subsequently caused it to be levied upon and sold upon an execution in his own famor against the plaintiff.

In 24 Wend. 379, Higgins v. Whitney, it was held that in such a case, the defendant might prove in mitigation of damages, that subsequent to the unlawful taking, it was seized on an execution in favor of a third person against the plaintiff. The same point was expressly decided in Perry v. Chandler, 2 Cush. 237; Squire v. Hollenbeck, 9 Pick. 551; and Kaley v. Shed, 10 Met. 317.

These cases were decided on the principle that the property had gone to the plaintiff’s benefit, as much as if they had been returned and accepted, and that such application, under such circumstances, operated to the same extent in mitigation of damages.

If such facts will exempt a trespasser, who has illegally taken goods from the true owner, from a liability to more than nomi. nal damages, it is difficult to perceive on what principle a party, who has taken goods from the possession of one who has no interest in them, and with his consent, though on an absolute promise to return them by a day named, may not excuse the non-performance of his promise to return them, by proof, that, in fact, they were owned by a third person, who, in the exercise of his rights of ownership, has taken them into his own possession, and put it out of the power of the defendant to restore them.

It is tfue the defendant’s contract is broken. But in judgment of law the breach of it is no damage to the plaintiff". He had, in fact, no right to have the possession of the goods. The person having the right of property and the right of possession, has taken the goods from the defendant. This he had a right to do, and neither the defendant nor the plaintiff could lawfully prevent it. Such facts, if satisfactorily established, would constitute a defence. The verdict must be set aside, and a new trial granted, with costs to abide the event.  