
    Brunswick Construction Company, Appellant, v. I. Townsend Burden, Respondent.
    First Department,
    December 14, 1906.
    Beal property—action against grantor for damages for removal of fixtures— reservation of right to remove fixtures — when assignee of executory contract of sale bound by.such reservation — when reservations in contract of sale not merged in deed — when no-abandonment of right to remove fixtures — articles removable as fixtures.
    The assignee of an executory contract for the sale of real' property which reserves to the grantor a right to remove fixtures is chargeable with notice of the reservation, when it appears that he buys the property as assignee of the executory contract rather than through original negotiations with the owner..
    When, in order to accommodate the purchaser, the sale is consumtnated prior to the time set in the executory contract, the grantor remaining in possession for a time under a verbal agreement to enable him to remove his property effects, the right to the grantor to remove the fixtures under said reservation is not merged in the deed, although the latter contains no provision for removal. The contract provisions for removal still remain executory, and it is immaterial whether the agreement be construed as a constructive severance of the fixtures, or as an option or privilege reserved to the. grantor to remove them after passing of title.
    Such; reserved right to remove fixtures is not merged in the deed, and survives the deed unless an abandonment of the right is shown. There is no presumption of abandonment.
    When the grantee purchased the property for the purpose, of tearing it down and erecting a hotel, and when the defendant was erecting a new dwelling in which he desired to use the fixtures, articles such as fancy hinges, mantels and flooring laid above another permanent flooring are removable fixtures. '
    Appeal by the plaintiff, the Brunswick Construction Company, 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 16th day of March, 1906, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial at • the New York Trial .Term.
    
      Alexander S. Andrews, for the appellant.
    
      Robert L. Cutting for the respondent.
   Laughlin, J.:

The action is brought to recover damages to a freehold caused by the removal of fixtures. On the 29th day of October, 1902, the defendant, then being the owner of premises known as Mo. 5 East Twenty-sixth street in the city of Méw York, entered into a contract for a sale thereof to one J. Delmage Trimble. Trimble, on the day fol-' lowing, contracted to sell the premises-to one Gustav Baumann. Mo reference is made in this contract to the former contract, which was the only authority or interest Trimble had in the premises, but the terms of the two contracts, excepting as to parties, consideration and notice of election to close the title, were the same. The defendant occupied the premises as a private residence. He was erecting a new dwelling at another place in the city, and he expressly reserved in his contract to sell to Trimble “ the right to remove all fixtures attached to said premises.” Trimble, in his contract with Baumann, made a like reservation in precisely the same language. Baumann assigned his contract to the ^plaintiff. The house took fire on the 6th day of January, 1903, and the defendant and his family were obliged to move out. On the twelfth day of January the defendant, in accordance with a provision in his contract reserving that right, notified Trimble that he required the payment of the balance of the purchase price within sixty days. •Trimble acknowledged this notice the next day and stated that he would be ready to comply with- the request. Down to this time the record does not disclose whether defendant knew that Trimble had ceased to be the real party in interest, or whether the plaintiff was aware that the title was not in Trimble or had knowledge- of the existence of. the terms of the contract between -the defendant and Trimble. It does, however, appear that the subsequent negotiations for closing title were had between the attorneys for the plaintiff and defendant, and on the basis of the terms and the provisions specified in the contract, by which defendant agreed to sell to Trimble, With which the attorney for the plaintiff appears to have been familiar, although it does not appear that any reference was made, to the contract. ^ The attorney for the plaintiff Called on the attorney for the defendant and requested a favor, concerning the time of closing, the title, with a view to consummating it simultaneously with other contracts relating to parcels of la-n,d in the immediate vicinity, upon all-of which the plaintiff contemplated erecting a hotel, and arranged to procure a loan from the Knickerbocker Trust ■ Company. Of course, the plaintiff is chargeable with notice of the' terms and provisions of the Baumann contract, which was assigned to him, and the fair inference is, excluding from consideration, the evidence received -under objection and exception- p.n the part of the plaintiff showing that Trimble was acting, as agent for Batimann, that it had- notice of the terms and provisions of the contract between defendant and Trimble, and acted as if it were tbe assignee thereof, and the evidence so received, even though.not competent to show agency, was at least competent to show knowledge of the defendant’s contract with. Trimble. If this,-were not so, instead of assuming to close the title with the defendant, who was not a party to' the Baumann contract, upon terms-which were the same as those incorporated in each contract, it is reasonable to infer that the plaintiff would have opened independent negotiations with the defendant for the purchase"of the premises or made some inquiry with a view to ascertaining whether the defendant was willing to fulfill the apparently unauthorized Contract of Trimble for selling his land. Trimble made -np further claim to any personal interest, under his contract, and merely appeared, at the time, title passed, to receive the difference between the amount defendant agreed to sell to him for and the amount Batimann agreed to pay him, and he made some suggestions and exercised some supervision in behalf of the jilaintiff ás if he were its agent or representative. The significant fact appears without contradiction that no new or original contract was negotiated between the plaintiff and the defendant. They did not meet as strangers. They met to close the contract, and the only contract made or authorized by defendant was-the contract with Trimble. The conduct of the parties in consummating the sale upon the basis of the contract-between the defendant and Trimble, although no reference was made thereto, necessarily indicates in the circumstances an adoption and acceptance of that contract by the plaintiff, or the ratification, adoption or acceptance by the defendant of the contract made by Trimble with Baumann, excepting as to the amount of consideration, and since the provision with respect to the removal of fixtures in each was identical, it is not very material that we should decide which of these views should be accepted. The practical effect is that in one case, the' plaintiff would become a party to the contract made by the defendant, and in the other, that the defendant would become a party to the contract which was assigned to the plaintiff. If the plaintiff assumed to have succeeded .to the rights of Trimble under his contract with the defendant, then, of course, the defendant, by virtue of that contract, was entitled to remove the fixtures; and if the defendant accepted the Baumann contract and undertook to perform for the vendor therein all of the terms and provisions thereof inured to his benefit, and he was likewise entitled to remove the fixtures by virtue of the clause relating thereto contained in said contract. Title was closed on the 22d day of January, 1903, for the convenience of the plaintiff and before the defendant was legally obliged to consummate it, and before he had had time and Opportunity to remove his property and become ready to surrender possession. Title was passed on condition, however, verbally agreed upon, that defendant was to be permitted to remain in possession of the premises about one month thereafter, to enable him to remove his property and effects. During this period of occupancy subsequent to. the closing of the title, the fixtures, to recover for which this action is brought, were removed. The right to remove the fixtures was not reserved in the deed. We are of opinion, however, that in the circumstances the contract in this respect remained executory, and was not merged in the deed. It is immaterial whether we construe the agreement with respect to the fixtures as a constructive severance thereof from the freehold and a reservation of title thereto in the defendant, or whether we construe it as an option of privilege to- the defendant to •elect to take and remove- them, for either view necessarily leads to ah affirmance of the judgment. If there was a constructive severance, the Conveyance did not pass title to the fixtures to a grantee with notice of the defendant’s rights (Tyson v. Post, 108 N. Y. 217; Lacustrine Fertilizer Co. v. L. G. & F. Co., 82 id. 476), and as lias been seen, the plaintiff was chargeable with such notice. Even if there- was not a constructive severance, but merely .a right reserved .to elect to take and remove the fixtures; the conveyance having been taken. for the convenience and accommodation, of the plaintiff earlier than it was entitled thereto and before defendant was ready to surrender possession and on condition that he might remain in possession until he could remove such property as he had a right to remove, it Was taken with such right of removal under the contract reserved to defendant. (See Murdock v. Gilchrist, 52 N. Y. 242; Bernheimer v. Adams, 70 App. Div. 114; affd., 175 A. Y. 472.) Of course, if the "defendant had surrendered possession without having rem'oved . "the fixtures, it might well be claimed that he had abandoned his right thereto, but that is not this case. The rule is that the contract for the conveyance of real estate is only -merged in the deed, which relates back to the date of the contract (Simmons v. Cloonan, 47 N. Y. 3) to the extent^ that the deed1 is a performance thereof, and that all other.stipulations and agreements therein, unless shown by other evidence to have been abandoned, survive the execution and delivery of the deed, notwithstanding the fact that they were-not incorporated or reserved therein. (Bogart v. Burkhalter, 1 Den. 125; Morris v. Whitcher, 20 N. Y. 41; Schoonmaker v. Hoyt, 148 id. 425; Witbeck v. Waine, 16 id. 533; Murdock v. Gilchrist, supra; Sage v. Truslow, 88 N. Y. 240; Disbrow v. Harris, 122 id. 362.) The deed was a performance of the defendamos 'contract to convey all that he had agreed to "convey, but it. was not an extinguishment of his right to remove the fixtures reserved in. the contract. It was not an execution- of the contract with respect to' the reservation of the title to the fixtures or the right to remove them. If they were constructively severed and reserved, the contract required no further execution with respect to them, and if the contract merely gave the right of removal likewise it was not an execution of it or of the agreement of the vendee to permit their removal. There was no presumptive or other evidence that the plaintiff intended to abandon its right to the fixtures and that did not become a question of fact to be passed upon by the jury. The only inference justified by the evidence was that it did not abandon such right. What constituted fixtures within the contemplation of the parties was a question of law. The plaintiff contemplated tearing down the house; the defendant was erecting a new one in which he desired to use the fixtures, most of which were movable and very valuable. The deed expressly conveyed the land and the building thereon. Plaintiff was, therefore, entitled to have the building remain, but the defendant had the right to strip it of all fixtures not distinctively realty. The only property claimed to have been removed by defendant which presents a close question as to the right of removal was some fancy hinges, mantels and flooring. The mantels and hinges had been made to match the furniture, and the flooring was part of a parquet floor which had been laid over a permanent floor which remained. They were not, we think, distinctly realty or an essential permanent part of the building.

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

Patterson, Ingraham, McLaughlin and Clarke, JJ., concurred.

Judgment affirmed, with costs. Order filed.  