
    Emma A. Robinson, as Trustee for Lucius Robinson and Emma R. Wyckoff, Appellant, v. David M. Pratt and Adam Mander, as Executors, etc., of William Sperl, Deceased, Respondents.
    Third Department,
    June 27, 1912.
    Fixtures—right of tenant to remove mirrors — effect of foreclosure of mortgage—waiver of right to remove fixtures by taking new lease — interest in real property under section 1638 of the Code of Civil Procedure.
    Mirrors, placed in a saloon by a tenant in such a manner that they cannot be taken down without damaging the walls, are removable by the tenant during the lease as trade fixtures, and them character as such is not destroyed by the foreclosure of a mortgage on the premises.
    "Where such á tenant takes a now lease and agrees to return the premises in' as good condition as they were then in, necessary wear and damage ■ by the elements excepted, he waives his right to remove the mirrors, ■ and they beeomo a part of the real estate.
    A tenant, in assorting ownership and a right to remove fixtures which have become a part of the real estate, may be considered as claiming an interest in the property under section 1638 of the Code of Civil Procedure.
    Betts, J., dissented.
    Appeal by the plaintiff, Emma A. Robinson, as trustee, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Che-mung on the 6th day of January, 1912, upon the" decision of the court rendered after a trial at the Chemung Special Term.
    
      
      D. C. Robinson, for the appellant.
    
      Richard H. Thurston, for the respondents.
   Kellogg, J.:

The plaintiff is the owner of the premises 158 Lake street, Elmira, 1ST. Y., and the defendants are the executors of the late tenant. A former owner leased the premises to the testator in 1892, and soon after the leasing the tenant erected in the barroom plate-glass mirrors along one side of the wall. A wainscoting extended about four feet from the floor. Upon this was a wooden band, and then the mirrors extended up five or six feet. The wall is plastered above the mirrors with cornice and frescoing. The mirrors do not extend entirely to the ceilings. The wall is brick. Blocks were inserted between the bricks, and the frames of the mirrors are attached to these blocks by screws, and the glass sets in the frame back against the wall. The joints around the edges are cemented and the mirrors form a part of the finish of the room. They extend along the entire north wall, which is from forty to fifty feet in length.

In repairing the building some of the mirrors were taken down carefully and the finish of the plaster on the brick wall came off, leaving the wall damaged. Where a plastered wall is damaged by pieces coming out it is difficult to repair it so it will not be noticed without refinishing the whole wall.

Shortly before or after the lease and the erection of the mirrors a mortgage was executed upon the premises, which was foreclosed, and the plaintiff derives title through the foreclosure sale. The mirrors evidently were removable by the tenant during the lease as trade fixtures and their character as such was not destroyed by the foreclosure. (McFadden v. Allen, 134 N. Y. 489.)

The testator took a new lease of the premises in April, 1907, after the mortgage sale, for a term of five years, expiring April SO, 1912, in which he agreed, at the expiration of the term, to surrender the premises to the plaintiff “in as good condition as now, necessary wear and damage by the elements excepted.” He died in December, 1907, and February 3, 1908, one Falsey, who had been in the employ of the testator for fifteen years in the saloon, became the tenant of the plaintiff, continuing the saloon business in the premises. The evidence does not show how Falsey became a tenant, whether by assignment of the intestate’s lease,, or whether that lease was surrendered and a new one taken. When Falsey entered into possession he purchased of the defendant the bar fixtures and furniture, and the contract provided that if it was adjudged that the defendant owned the mirrors, Falsey was to retain and pay for them.

In taking a new lease and agreeing to return the premises in as good condition as they were then in, necessary wear and damage by the elements excepted, the testator waived his right to remove the fixtures, and they thereupon became a part of the real estate. (Stephens v. Ely, 162 N. Y. 79.)

In asserting ownership and a right to remove the fixtures which had become a part of the real estate the defendant may be considered as claiming an interest in the property under section 1638 of the Code of Civil Procedure. (St. Stephen’s Church v. Church of Transfiguration, 201 N. Y. 1.)

The judgment should, therefore, be reversed upon the law and the facts and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Betts, J., dissenting; Lyon, J., not sitting.

Judgment reversed on law and facts and new trial granted, with costs to appellant to abide the event".  