
    In the Matter of the Application for the Voluntary Dissolution of the Eureka Mower Company.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed May 4, 1895.)
    
    Fixtures — Contract.
    Where a contract for the sale of real estate includes “ such machinery and office furniture as is mentioned in the schedule hereunto attached,!’ and the schedule enumerated various articles of machinery which were attached to the premises in such manner that they could be detached, similar articles not enumerated in the schedule, are personal property and do not pass with the realty.
    Appeal from an order, adjudging that certain property is personal property.
    
      Riley, Robinson & Love, for app’lt; Cookingham & Sherman, for resp’t.
   Merwin, J.

In February, 1893, the respondent, Simmons, was appointed receiver of the Eureka Mower Company, a domestic corporation organized for the purpose of manufacturing and selling mowing machines and other agricultural tool's. At this time the company was in possession of about seven acres of land, on which were located brick buildings built by the company i.n which to conduct its business; and it had there manufactured mowing machines, and also spring tooth harrows and cultivators. The receiver, after his appointment, continued, to some extent, to carry on the business, for the purpose of closing up the affairs of the company. On the 6th of September, 1893, by authority of the court, the receiver entered into a written contract with Edwin H. Risley; leasing to him for one yéar the real estate and certain machinery, and giving him the right to purchase. the same on certain terms, provided he gave notice in writing on or before July 1, 1894, of his desire and determination to do so. This option of purchase was in due time accepted by the Standard Harrow Company, the assignee of Risley, and for whose benefit, apparently, Mr. Risley acted in the transaction. In carrying out this contract, a controversy arose as to whether certain articles on the premises were real estate, and so passed under the contract, or whether they were personal property, and not included in the contract of sale. Thereupon the parties agreed upon a statement of the facts, and .the receiver, upon notice, applied to the court for instructions and fora determination of the questions involved; each party stipulating to abide by the decision of the court, without prejudice to the right of appeal. After hearing both parties’, the order appealed from was made. In the contract of September 6, 1893, the property leased is described as follows :

“The manufacturing plant known as the 1 Eureka Mower Company’s Property,’ consisting of about seven (7) acres of land, on which are erected an office building, foundry, machine shops, storehouse, lumber sheds, scales, and other appliances for conducting a manufacturing business, including only such machinery and office furniture as is mentioned in a schedule hereunto attached, marked 1 A,’ with all the appurtenances, rights, privileges, and benefits, railroad tracks, water rights, and other privileges incident to said real estate.”

In giving the option of purchase, the property is described as “the property embraced in the lease.” In Schedule A, annexed to the contract, there was: First, under the head of “ Office Furniture,” a list of such articles ; then, under the head of “ Machinery, etc., in Wood Shop,” a number of articles were specified, including “ one grindstone, with iron frame," several circular saws and tables, a planer, a lathe, a section fan and its air pipes, work benches and iron vises on them, and “ all countershafts and bolts used for driving all the foregoing machinery; ” then, under the head of “Machinery and Tools in Blacksmith Shop,” several articles were named, among others “ one Merrill & Bros, drop hammer,” a spring hammer, all countershafts and bolts used for driving them, “ one fan blower, with its countershaft, belting, and air-pipes ; ” and lastly, under the head of “ machinery, piping, shafting,” etc., there was entered “all piping, line shafting and line belting, boilers, engines, heaters, steam pumps, all tools and appliances in the engine and boiler rooms.” On the same day that this contract was made, the receiver took bach from Risley a lease for a year of “all that part of the Eureka Mower Company plant, in Utica, described as follows: The north one-half of the machine shop, and the rooms known as the milling, grinding, and chipping rooms, on the north front of said plant," the foundry, sand house, and pattern house, the cupola house, core room, and the iron and coke sheds, the easterly lumber shed,” — and a certain portion of the office and furniture therein. On the 2d January, 1894, the receiver gave to Hart & Crouse a lease from January 1, to September 1, 1894, of “ all that of the Eureka Mower Com-pony plant, in Utica, New York, which is described as follows 2 The entire foundry, the sand house, pattern house, core room, cupola house, coal and coke houses, the milling and grinding rooms, and all the machinery therein,” — excepting certain things not important here. Prior' to June 23, 1894, Eislev assigned to the Standard Harrow Company the contract and option of September 6, 1893, and that company also acquired of Hart & Crouse their lease for the months of July and August, 1894, and entered into possession thereunder. The articles in controversy are a cupola, a blower, seven tumbling barrels, two grindstones, a power press, a drop hammer, two pattern maker’s work benches {one having an iron vise, and the other a wooden vise), and a quantity of hose and couplings. It is not claimed that any of these articles are mentioned in Schedule A, attached to the contract of September 6, 1893. That contract, by its terms, included “ only such machinery as was mentioned in the schedule. So that if the articles in question are to be deemed machinery, within the contemplation of the. parties, they did not pass. The appellant claims they were so attached or used that they formed part of the realty, and were not affected by the provision in the contract as to machinery.

Ordinarily, in determining whether a certain article is a fixture and a part of the realty, the purpose of the annexation and the intent with which it was made are the most important considerations. McRea v. Bank, 66 N. Y. 489. The intent is sometimes presumed, Tifft v. Horton, 53 N. Y. 382; Ewell, Fixt. 43, or it may be inferred from circumstances, McRea v. Bank, supra ; Voorhees v. McGinnis, 48 N. Y. 178. So that in the present case, although the intent with which the annexations were made is not specifically stated in the facts agreed upon, still the object and purpose of the annexation appear, and the surrounding circumstances ; and these facts are to be considered in ascertaining the intent of the annexation, so far as it may be material. When, however, there is an agreement on the subject between the parties, then the.intent of the parties is to be given effect, and the question becomes one of interpretation and.construction, determinable bv the general rules applicable to such cases. Ewell, Fixt. 307. In such cases the conduct of the parties is material, and if the language of the contract is indefinite or ambigious the practical interpretation of it by both parties is a consideration of importance. Woolsey v. Funke, 121 N. Y. 92 ; 30 St. Rep. 768. It is conceded that the most, if not all, of the articles in controversy were placed in the buildings by the Eureka Company for its use in its manufacturing business. It is also quite apparent that many articles so placed were by all parties, without question, considered personal property. Of the articles in question, the cupola, the blower, and the tumbling .barrels were used in connection with the foundry. The cupola was in the foundry building, and was used for melting iron to be used in making castings. It rested on a concrete foundation let into the ground, and extended upward through the floor and through the roof, and was covered with iron. It consisted-of an iron shell about fifty-six inches in diameter, lined in the inside with fire brick, and was supported in its vertical position by iron stops bolted to the floor and to the roof. The structure seems to have been called the “ Cupola House " in the sublease to the receiver. The blower in question was used in connection with the cupola, and was necessary to its operation. Ft was located on the second floor of the building, to which it was firmly attached by bolts, and it was connected with the interior of the cupola by a metallic pipe. Motion was imparted to the blower through a system of slialis, pulleys, and belts, which connected with the main line of shafting in the building. The countershafting was supported by hangers bolted to timbers connected with the frame work or works of the building. The Standard Harrow Company, upon taking possession under the lease assigned to it by Hart & Crouse, severed the blower from all connection with the cupola building, and at the termination of the lease the blower, together with its countershaft, pulleys, hangers, and halts, lay on the floor in the foundry building. Tumbling barrels are used in all iron-casting foundries to free the castings from sand and other roughness of surface. The barrel is mounted on shafts supported in bearings made of cast iron, which, in turn, are supported on a concrete foundation; the bearings being held in position by bolts, the heads of which are built into the concrete foundation, and the bolts pass through the base of the bearings, and are held in position by nuts. On one end of the bearings is a large cast-iron pulley, from which a belt runs to a countershaft, and this, by belt, is connected with the main line of shafting. One of the barrels in question was in the same room with the cupola, and the others were in a tumbling barrel room, and were to some extent, separated by wooden partitions. They were all supported in a similar way,'and were driven by belts running to countershafting and that, in turn, receiving power through belts from the main line. The two grindstones were located in the room adjoining than containing the tumbling barrels. The grindstone beds or walls were built of brick and mortar, and let into the ground, on the top of the walls there were bolted two timbers, one on each wall, and on these timbers the hangers for supporting the grindstone shafts were bolted. On the end of each grindstone shaft was a large cast-iron pulley connected by belt with the countershafts, and that, by belt, connected with the main line. On the 16th January, 1894, the receiver sold at public sale a large amount of property located in the said buildings, including the said grindstones, with the belts, pulleys, countershafts, and hangers therefor; and Eisley and the manager of the harrow company were present, and saw the same sold, and made no objection thereto, or any claim on the property. The power press and the drop hammer were in the machine shop. The press rested upon a large flat stone placed on a concrete foundation about four feet square, let into the ground a sufficient depth to support and steady the press in its work, the press being held in position by its own weight. The drop hammer was placed on a block of wood set in a vertical position, and let into the ground a number of feet. The base of the hammer was bolted to the block by bolts so to be held firmly in position. Both the press and the hammer were connected by pulleys and belts with the countershafting, and were operated by power derived in that way. They were located in that part of the building occupied by Risley and the harrow company, and on the 4th October, 1893, the har: row company rented them of the receiver for several months. The work benches and vises were for the use of pattern makers, and were in no way fastened to the buildings. During the term of the lease they were removed by the harrow company from the room1 they were in at the time of the lease to another. The hose was, at the date of the lease, distributed in different rooms, and was fitted to be attached to hydrants in the yard of the mower company, for use in case of fire, apd for any other purpose which it was suited for. It was provided for the -safety of the plant, and the couplings were arranged to connect -with the couplings on the hydrants. Neither the hose nor the couplings were special, but such as were in general use.

It is evident that all the articles in controversy, except cupola, that were attached to the buildings or grounds, could be removed without injury, so that each of such articles may be said to be, in itself, a complete machine, or a complete article of machinery, capable of being used in other places of like character. It is to be observed that in the schedule of machinery attached to the contract there are specified a fan blower and belting and a drop hammer. The failure to specify the similar articles in controversy would indicate an intention they should not be included. All line shafting and line belting are specified, but only the countershafts and belts then used fqr driving the machinery therein specified. The inference would be that the countershafting and belting, in connection with articles not specified, were not intended tobe included, as all the countershafting was attached to the buildings in substantially the same form. The conduct of the parties in regard to the sale of the grindstones and the renting of the power press and drop hammer, although the latter were at the time in possession of Risley and the harrow company, is suggestive of an understanding at the time that they were not covered by the original contract. The purpose of the lease in the contract of September 6,1893, was to enable1 the lessee or the harrow company to manufacture harrows. For that purpose they had no use for the articles specially connected with the foundry, and so it may be said that for that reason they were not mentioned in the schedule of machinery, or intended to be included in the contract of purchase. The tumbling barrels were such as were used in similar foundries, and if the countershafts used in connection with them were not intended to.be covered by the contract, as they were not therein specified, it may also be said that the barrels were not intended to .be covered. They were certainly no more a part of the realty than the line shafting, and the specification of the latter gives point to the failure to specify the other. If there be many things of the same class or kind, the expression of one or more of them in a conveyance implies the exclusion of all not expressed, although the law would have implied all if none had been enumerated. 2 Pars. Cont. (8th ed.) 516; Hare v. Horton, 5 Barn. & Adol. 715. The foregoing considerations lead to the conclusion that the cupola should be deemed to be a part oí the realty, but that all other articles in controversy should be deemed machinery, within contemplation of the parties, and, not being specified in the schedule attached to the contract, were not intended to be covered by its provisions. The order appealed from should therefore be modified by declaring that cupola is a part of the realty. In other respects the order should be affirmed.

Order modified, stated in the opinion, and as modified affirmed, without costs of appeal to either party.

All concur.  