
    Leonard G. Kirk, Appellant, v. Bernard Crystal, Respondent.
    First Department,
    March 8, 1907.
    Sale — failure to file contract of conditional sale — mechanic’s lien — election of remedies — when purchaser of premises not liable for conversion.
    The plaintiff installed a heating plant in a building under a- conditional contract of sale providing that the title remain in the plaintiff until he was fully paid in cash. After the installment of the' plant and before payment, the owner of the building conveyed the premises, and the plaintiff thereafter filed a mechanic’s lien against whatever interest the former owner had in the premises. The pur- • chaser of the property in his turn conveyed to the defendant, of whom.the plaintiff demanded a return of the heating plant, and it being refused sued for conversion.
    
      Meld, that the complaint was properly dismissed because the contract of conditional sale had not been filed in the registrar’s office until six months after the defendant had purchased. the property without notice of the plaintiff’s claim;
    That although the plaintiff and the original owner could by agreement reserve the character of the heating plant as personalty, such agreement was not binding against a bona fide purchaser ’who took the plant as part of the realty without notice; "
    That as the plaintiff had filed a mechanic’s lien against the interest of the original owner, it was inconsistent with his claim of title to the heating plant, and was an election of remedies; -
    That as the plaintiff had not complied, with chapter 698 of the' Laws of 1904, providing that every' contract of conditional sale of chattels attached to a building shall he void against a subsequent bona fide purchaser of the premises unless the' conditional contract he filed, the defendant in purchasing the property was justified in assuming that no claim of title would he made to the heating plant, especially so as a mechanic’s lien therefor had been filed.
    Appeal by the plaintiff, Leonard Gr. Kirk, from a judgment of the Supreme Court ill favor of thé defendant, entered in the office of the clerk of the county of ¡New York on the 23d day of October 1906, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the ¡New York Trial Term.
    
      James E. Duross, for the appellant,
    
      Harold Swain, for the respondent.
   McLaughlin, J.:

On the 14th of August, 1903, the plaintiff entered into a written contract with one Liebeskind, who then owned a piece of real estate in the city of New York upon which he was erecting a six-story apartment, to install therein, for $3,100, to be paid to him at times stated in the contract, a steam heating plant consisting, among other things, of a horizontal tubular boiler, pipes extending through the building, radiators in the different rooms connected with such pipes, valves and other appliances usual and necessary -to properly heat the building, when completed, with steam. The contract further provided that the plant when installed was to remain the property of the plaintiff until fully paid for in cash. Plaintiff performed the contract on his part by installing the plant .on or prior to May 18, 1904, but Liebeskind neglected to perform, in that he failed to pay the plaintiff $1,538.93. On the 25th of July, 1904, Liebeskind sold the apartment house to one Kamsler, and on the eleventh of August following, plaintiff—not having been paid the balance due him under his contract-—-filed a notice of mechanic’s lien against whatever interest Liebeskind had in the premises in question. On September 1, 1904, Kamsler sold the premises to defendant and plaintiff thereafter demanded a return of the heating plant, which was refused, and he thereupon brought this action for conversion of the same. At the trial tfie complaint was dismissed at the close of plaintiff’s case, and he has appealed.

I am of opinion that the complaint was properly dismissed and that the judgment should be affirmed. The agreement between plaintiff and Liebeskind was not filed in the register’s office until March- 23, 1905, some six months after defendant purchased the property, nor was any proof given at the trial that defendant at the time he purchased the property had notice of the plaintiff’s claim or any knowledge that the heating plant had not been paid for, other than thó notice of lien filed against whatever interest Liebeskind had in the premises. The plaintiff and Liebeskind, as between themselves, could by agreement preserve the character of the heating plant as personalty. (Ford v. Cobb, 20 N. Y. 344; Sisson v. Hibbard, 75 id. 542.; Tyson v. Post, 108 id. 217.) But this they could not do as against a bona fide purchaser or mortgagee who never assented to nor' had any notice of their arrangement. (McMillan v. Leaman, 101 App. Div. 436, and cases cited.). The defendant had no' notice of the arrangement between plaintiff and Liebeskind and, therefore, as to him the heating plant was a part of the realty. The building could no more be used without heat than it could without light and water, and one-would hardly contend that an apartment house six stories in height would be habitable without either. Besides, the plaintiff knew, when he installed the plant, the purpose for which it was intended and that it was designed to become a part of the building itself. There was present every element necessary or -essential, once the plant had been installed, to change its character from personalty to realty; physical annexation of one to the other; adaptation to the use to which the realty was devoted, and an intent on the part of the plaintiff and Liebeskind to make a permanent improvement.

There is another view which I think requires an affirmance of this judgment. After Liebeskind had failed to make the payments jirovided and had sold the property to Kamsler, and before Kamsler had sold to the defendant, the plaintiff filed a notice of mechanic’s lien against whatever interest Liebeskind had in the building and the land upon which it stood for the balance due him on the héating plant. The filing of this notice was the assertion of a claim irreconcilable and inconsistent with the one made in this action. That claim was predicated upon the fact that the title to the plant had passed from the plaintiff to Liebeskind, while here the claim is that title never passed but always' remained in the plaintiff. Therefore, if it be held that at the time the notice of lien was filed the title was in plaintiff, and by reason of that fact he had an election whether he would take the plant or seek to recover its purchase' price by acquiring a lien upon the real estate, lie, by filing the notice of lien, made his election and was bound by it. (White v. Gray's Sons, 96 App. Div. 154; Orcutt v. Rickenbrodt, 42 id. 238 ; Earle v. Robinson, 91 Hun, 363 ; affd., 157 N. Y. 683.) The choice of the selection of one remedy having been made and acted upon became final and the right to follow the other was forever gone. (Morris v. Rexford, 18 N. Y. 552; Rodermund v. Clark, 46 id. 354.)

The statute (Laws of 1904, chap. 698, amdg. Lien Law [Laws of 1897, chap. 418], §§ 112-115) would also seem to be a complete bar to the plaintiff’s recovery. The act referred tv took effect May 9, 1904, and some of the heating plant at least was put into the building subsequent thereto. This act provided that every contract for the conditional sale of 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 the building stands, and as to them the sale shall be deemed absolute unless, on or before the date of delivery of such goods or chattels at such building, such contract shall havé been duly filed and indexed as directed in the act. The defendant, as we have already seen, purchased the premises on the 1st of September, 1904. The agreement had not then been filed as required by the act and he, therefore, was justified in assuming that no claim could or would be made to the heating plant or any part of it, and especially in view of the notice of lien which the plaintiff had then filed against the interest of Liebeskind.

It follows that the judgment appealed from should be affirmed, with costs.

Patterson, P. J., Ingraham, Houghton and Scott, JJ., concurred.

Judgment affirmed, with costs. Order filed.  