
    Thomas J. Cosgrove, as Assignee for the Benefit of Creditors of Thomas J. Brennan, Appellant, v. Anna Estelle Troescher, Respondent.
    
      Apartment house — what articles are fixtures as between mortgagor and mortgagee — intent of mortgagor', how ascertained.
    
    Carpets nailed to the floors of the halls and stairways of an apartment house, window shades and gas fixtures placed in the various apartments in the usual way, detached ash cans provided for the use of the tenants, gas ranges placed in the kitchen of each apartment, and not set in any place specially constructed for them, and which were wholly disconnected. from the building except that they rested on four legs on a concrete hearth and were attached to a supply pipe and connected with flues as ordinary stoves are generally connected, are, as between the owner of the building, who installed the various articles, and a person to whom he executed a mortgage upon the apartment house, personal property as matter of law.
    The question whether refrigerators, placed in the alcoves specially constructed for that purpose in each apartment and connected hy a waste-water pipe with the sewer, and gas logs furnished with asbestos backs inserted in the fireplace in each apartment and screwed to the supply pipe, and window awnings and iron clothes poles placed upon the roof and nailed to movable planks, are personal property, depends upon the intention of the mortgagor, to be ascertained, not from his testimony as to what he intended, nor from any undisclosed purpose or intent which he may have had, hut from his acts and conduct and all the surrounding facts and circumstances.
    Appeal by the plaintiff, Thomas J. Cosgrove, as assignee for the benefit of creditors of Thomas J. Brennan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of November,, 1900, upon the verdict of a jury.
    This is an action for conversion. Plaintiff’s assignor constructed three apartment houses, consisting of eleven apartments each, at the-southeasterly corner of One Hundred and Fifth street and the Boulevard. After their construction he carpeted the halls and stairways.. The carpets were nailed to the floo.r. He placed in the kitchen of each apartment a gas range resting upon fouf legs on a concrete hearth and attached to the supply pipe and connected with a flue. He also-placed a refrigerator in an alcove, specially constructed for a refrigerator, in each apartment. ' Some of the refrigerators were fastened to pieces of flooring at the side, but the others were' not attached to-the building, except that they were connected by a waste-water pipe with the sewer and they were not put in as part of the construction of the houses or as necessary to complete them. He purchased ‘ awnings for fifty-two windows; these were stored in the cellar at the time in question (and it does not appear that they had ever been put up). ■ He also purchased four hundred and seventy-four window shades which were hung in place in the usual way. One gas. log with asbestos back was inserted in the fireplace in each apartment and was screwed to the gas supply pipe. There were twelve detached ash cans provided for the use of tenants. There were five iron clothes poles or racks or drying frames on the roof, nailed to movable beams or planks for the protection of the roof.
    After the construction of the apartment houses, plaintiff’s assignor mortgaged the premises to defendant. After renting some of the apartments, the generad assignment was made and the assignee put in some of the gas logs after the making of the mortgage. Subsequently the mortgage was foreclosed and defendant purchased the property on the foreclosure sale. The assignee then claimed the property hereinbefore described and demanded delivery thereof by defendant, and upon refusal, this action was brought.
    The trial j udge was of the opinion that it was a question of fact depending upon the intention of the owner as to whether all these items were personal property or fixtures, and left the determination thereof to the jury. To this'plaintiff’s counsel excepted, and thereupon requested the court to charge the jury as to each item of property separately, that it was personal property as matter of law, "and excepted to the refusal of the court to so charge.
    
      L. Lafiin Kellogg, for the appellant.
    
      Joseph Fettreteh, for the respondent.
   Laughlin, J.:

Some of these articles were, as matter of law, personal property and this necessitates a reversal of the judgment. It is now well settled by authority that carpets, window shades and gas fixtures are movables and not fixtures. (McKeage v. Hanover Fire Insurance Company, 81 N. Y. 38 ; Manning v. Ogden, 70 Hun, 399; Shaw v. Lenke, 1 Daly, 487 ; Kirchman v. Lapp, 19 N. Y. Supp. 831; Towne v. Fiske, 127 Mass. 125 ; Rogers v. Crow, 40 Mo. 91; Capehart v. Foster, 61 Minn. 132.) It needs no citation of authority to show that the ash cans were personal property.

We are also of opinion that the ranges were movables as matter of law. They were not set in any place specially constructed for them. They stood out on the floor wholly disconnected from the walls, floor or ceiling, except that they rested on feet which were not attached and were connected with the flues as stoves are generally connected. Their connecting pipes were screwed on to the gas supply pipes, but this was similar to the connection between an ordinary stove and a permanent boiler and in no material respect differs from the attachment of gas fixtures. It has been held that portable furnaces, stoves and stove pipes are movables. (Freeland v. Southworth, 24 Wend. 191; Towne v. Fiske, supra.)

It is quite likely that the refrigerators and gas logs were also movables as matter of law, but the evidence is not sufficiently definite or satisfactory to enable us to so decláre. It does not appear whether the alcoves, in which the refrigerators were placed were finished off to correspond with the rest of the room, or whether the refrigerators were purchased in the market or specially constructed to fit these alcoves. It does not appear that the trimmings and furnishings of the refrigerators corresponded with those of the room in which they were located. The evidence does not show whether the awnings had been specially constructed for the windows of these apartments or whether they had been used. The same is true of the drying frames.

For aught that appears in the record, the awnings, drying frames, gas logs and refrigerators may have been constructed and furnished under circumstances that would show they were intended as permanent fixtures. (Pratt v. Baker, 92 Hun, 331.) The determination of the question may depend upon the intention of the owner, to be ascertained, not from his testimony as to what he intended nor from any undisclosed purpose or intent which he may have had, but from .his acts and conduct, and all the surrounding facts and circumstances. (Pfluger v. Carmichael, 54 App. Div. 153; Snedeker v. Warring, 12 N. Y. 170, 178; Hopewell Mills v. Taunton Savings Bank, 150 Mass. 519, 522.)

In Potter v. Cromwell (40 N. Y. 287) the court states that “ the true criterion of a fixture is the united application of three requisites: First. Actual annexation to the realty or something appurtenant thereto. Second. Application to the use or purpose to which that part of the realty with which it is connected is appropriated. Third. The intention of the party making the annexation to make a permanent accession to the freehold.” This doctrine was reaffirmed in McRae v. Central National Bank of Troy (66 N. Y. 489) and in Ward v. Kilpatrick (85 id. 413).

In McRae v. Central National Bank of Troy (supra), however, the court say that “ If the property had in its own nature a determinate legal character, either as realty or personalty, the manner in which the parties treated it would not change that character; yet, when, as in this case, the character of the property (heavy machinery fastened to the floor by bolts, nails and nuts) is not so fixed, but depends upon the intention with which it was annexed, the conduct of the party who annexed it has an important bearing as throwing light upon that intention.” The property which we have declared movables, as matter of law, has in its “ own nature a determinate legal character ” as personalty, and falls within the exception pointed out in the opinion from.which We have quoted.

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

Patterson, O’Brien, Ingraham and McLaughlin, JJ., concurred.

Judgment- reversed, new trial granted,-costs to appellant to-abide • event.  