
    Levenson Wrecking Company, Respondent, v. Henry Hillebrand, Appellant.
    (Supreme Court, Appellate Term, First Department,
    February, 1916.)
    Condemnation proceedings — award in — city of New York — conversion — evidence as to value — when judgment reversed.
    In condemnation proceedings the city of New York acquired the title to 'certain premises where defendant had conducted a hotel and saloon business; he received an award for the unexpired term of his lease but rented the premises for a month under an agreement to vacate on a five days’ notice. An agreement between plaintiff and the proper municipal authorities for the wrecking, demolition and removal of the building provided that all the materials or portions removed therefrom should become and be the property of plaintiff. On the day before the expiration of the last letting defendant sold a steam-heating plant and a brass railing on the outside of the building which guarded an area way, which had been placed in the premises by defendant’s father who formerly conducted the business. In an action by plaintiff for the conversion of the steam-heating plant and the brass railing, held, that the evidence showed an existing right in plaintiff to the immediate actual possession of said articles at the time of the alleged conversion and that he was entitled to maintain the action.
    That said articles had no connection with the business carried on by defendant and could not be considered trade fixtures; that the acceptance of the new lease by defendant after the 'award in condemnation proceedings without reserving the right to remove the fixtures was a waiver and abandonment by him of the right to remove them, if any such right existed.
    The only evidence given by. plaintiff as to value was that the reasonable market value of the brass railing was $75 and that of the steam-heating plant $400, but he also testified that in order to get the boiler out it was necessary to take it apart and remove it a section at a time. Defendant’s proof was to the effect that the entire steam-heating plant when originally installed eighteen years before had only cost $435, and that its reasonable market value at the time of the trial to a person who had to remove it from the building was not more than $50 or $60, and that the value of the railing when new was $75, but second hand was not worth more than $15. Held, that an award to plaintiff of $75 as the value of the brass railing and $400 ,as the value of the steam-heating plant was manifestly against the evidence and that the judgment should be reversed and a new trial ordered unless plaintiff stipulate to reduce the judgment to the sum of $280 and costs, in which case the judgment will, be affirmed, but without costs.
    Appeal by defendant from a judgment rendered in the City Court, after a trial by jury, on a verdict in favor of plaintiff by direction of the court, for $532, with costs.
    Harry Edwards (Henry A. Rubino, of counsel), for appellant.
    Feltenstein & Rosenstein (Moses Feltenstein, of counsel), for respondent.
   Weeks, J.

This action is brought for the conversion óf a steam-heating plant including a six-section boiler and pipes, radiators and other appurtenances, as well as a brass railing situated in the premises 513-517 Pearl street in the city of New York.

The defendant had been a tenant of said premises where he conducted a hotel and saloon business and the articles claimed to have been converted were placed in the premises by defendant’s father who formerly conducted the business.

The boiler was used to heat the living rooms of the defendant and the halls. The brass railing was on the outside of the building, evidently to guard an area-way.

The premises in question were acquired by the city . of New York for the court house site in condemnation proceedings in which the defendant received an award for the unexpired term of his lease.

The city took title to the premises on August, 1,1913, and on August 15,1913, rented the premises to the defendant from August 1,1913, to September 30,1913, at a rental of $150 per month, the defendant agreeing to make all repairs and to vacate the premises on five days’ notice.

On September 25,1913, the court house board of the city of New York made an agreement with the plaintiff for the wrecking, demolition and removing of the buildings in which the articles claimed to have been converted were contained.

The essential feature of this contract, is as follows:

“Article 1. The contractor shall wreck, demolish, raze and remove the buildings hereinafter described in accordance with all the terms and conditions of the sale attached to the form of bid, a copy of which is attached hereto and made a part of this contract; said buildings being known and described as follows: Parcel 1, Nos. 515-517 Pearl Street. All the materials or portions thereof removed from said buildings upon removal to become and be the property of the contractor.”

On September 29, 1913, defendant sold at auction the contents of the building, including the steam-heating plant and railing in question and received the proceeds of the sale.

At the close of the case the defendant’s counsel moved that the complaint be dismissed on the ground that plaintiff had not shown title to the property alleged to have been converted and moved for the direction of a verdict on the ground that they were trade fixtures and that defendant had a right to remove them before the expiration of his term.

Counsel for plaintiff also moved for the direction of a verdict in favor of the plaintiff and no request was made "by either party to submit any questions to the jury and the court, granted plaintiff’s motion and directed a verdict, for the plaintiff for the full amount claimed, to wit, $400 for the steam-heating plant and $75 for the railing, together with interest.

The plaintiff showed an existing right to the immediate actual possession of the articles in question at the time of the alleged conversion (Smith v. Smalley, 19 App. Div. 519; Byrne v. Weidenfeld, 113 id. 452) and was entitled to maintain the action for conversion. Melton v. Fullerton-Weaver Realty Co., 214 N. Y. 571.

The articles had no connection with the business carried on by the defendant and could not be considered trade fixtures and the acceptance of the new lease by the defendant after the award in the condemnation proceedings, without reserving the right to remove the fixtures, was, in any event, a waiver and abandonment by the defendant of the right to remove the fixtures, if any such right existed. Van Vleck v. White, 66 App. Div. 14.

“ If a tenant, having the right to remove fixtures erected by him on the demised premises, accepts a new lease of such premises, including the buildings, without reservation or mention of any claim to the buildings, and enters upon a new term thereunder, the right of removal is lost, notwithstanding his actual possession has been continuous.” Loughran v. Ross, 45 N. Y. 792.

“A tenant may remain in possession after the old lease has expired; but unless he reserves the right, under the new lease to remove the fixtures upon the land, the right will be deemed to have been abandoned and they will become the property of the landlord.” Talbot v. Cruger, 151 N. Y. 117.

The evidence, however, does not justify a finding for the plaintiff for the full amount of its claim.

The only evidence given by plaintiff as to value was the testimony of its secretary that the reasonable market value of the brass railing was $75 and of the steam-heating plant was $400, but he also testified that in order to get the boiler out of the building it was necessary to take it apart and remove it one section at a time.

The defendant proved that the entire steam-heating plant when originally installed, eighteen years before, had only cost $435, and that its reasonable market value at the present time to a person who had to remove it. from the building was not more than $50 or $60 and that the value of the railing when new was $75, but as a second hand railing was not worth more than $15. ■

Upon this testimony it was manifestly against the weight of evidence to award plaintiff $75 as the value of the brass railing and $400 as the value of the steam-heating plant and the judgment should be reversed and . a new trial ordered with costs to appellant to abide the event unless plaintiff will stipulate to reduce this judgment to the sum of $280 and costs in the court below, in which case it will be affirmed, without costs.

Lehman and Delehanty, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff will stipulate to reduce, in which case it will be. affirmed, without, costs.  