
    Adolph Leibowitz and Frederick Leibowitz, Respondents, v. The Joseph B. Thomson Real Estate Company and Others, Defendants, Impleaded with Louis Fishman, Appellant.
    Second Department,
    October 31, 1913.
    Real property—fixtures — conditional sale — priority of claim of conditional vendor of chattels over claim of mortgagee of freehold.
    Where, in a suit to foreclose a mortgage on real property, a defendant claims an interest in removable fixtures sold to the owner, with the consent of the mortgagee, under an agreement that they should remain pergonal property until paid for, and has taken a chattel mortgage on the fixtures, which has been duly filed, it is error to direct a judgment against such defendant on the face of the pleadings.
    An agreement between a vendor and the owner of real property that certain articles sold to be annexed shall retain their character as personal property until paid for, notwithstanding such annexation, should be upheld if the goods may be removed without substantial injury to the property.
    Appeal by the defendant, Louis Fishman, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of July, 1913.
    
      Joseph Goldfein, for the appellant.
    
      Cyrus S. Jullien, for the respondents.
   Carr, J.:

The defendant Fishman appeals from an order directing judgment, on the pleadings, for foreclosure and sale of certain real property in Brooklyn, in so far as said order affects him. The plaintiffs hold a mortgage on said premises and alleged a default in its conditions. They further allege that Fish-man claimed an interest in the premises which is subordinate to the mortgage. Fishman answered by setting up that he claimed an interest in certain plumbing appliances or fixtures which he sold to the owner of the premises, the Thomson Company, under an agreement that the goods should remain as personal property until fully paid for, and that he took a chattel mortgage on the goods as security for the purchase price and duly filed it as provided by statute, before the goods were installed on the premises in question; that the goods have not been paid for, and that by virtue of said chattel mortgage he is now entitled to the possession thereof. He alleged, further, that the plaintiffs knew of the conditions and circumstances of the sale and consented thereto. The mortgage sought to be foreclosed antedates in record the appellant’s chattel mortgage. The sole question involved on this appeal is whether the appellant has set up a good defense in his answer, and this question must be determined on the face of the pleadings themselves. There is no allegation in the complaint that the goods in question were so annexed to the realty as not to be removable without serious in j ury to the structure itself. Their nature, however, is such that to render the building fully usable for residential purposes they would need to be replaced with similar appliances. This circumstance does not exclude them from the settled rules applying to conditional sales. (Fitzgibbons Boiler Co. v. Manhasset Realty Corporation, 198 N. Y. 517, adopting dissenting opinion of Scott, J., below, 125 App. Div. 764.) However, the answer of the appellant distinctly alleges that all of the articles in question “ can be disattached from the real property mentioned [in the complaint] without any material injury to the said real estate.” Therefore, upon the face of the pleadings, this case falls within the rule declared in Tifft v. Horton (53 N. Y. 377); Kerby v. Clapp (15 App. Div. 37); Davis v. Bliss (187 N. Y. 77), and many other authorities, in which cases it was held that an agreement between a vendor and the owner of the real property that certain articles, sold to be annexed to a freehold, should still retain their character as personal property until paid for, notwithstanding such annexation, if the goods might be removed without substantial injury to the freehold, should be upheld. This rule has been qualified by statute as to subsequent purchasers and mortgagees in good faith where the contract of conditional sale has not been filed as provided in section 62 of the Personal Property Law (Consol. Laws, chap. 41; Laws of 1909, chap. 45), but that statute does not apply to this case, nor is it so contended. The respondents rely upon the authority of Mechanics & Traders’ Bank v. Bergen Heights Realty Corp. (137 App. Div. 45), McMillan v. Leaman (101 id. 436) and Jermyn v. Hunter (93 id. 175). In all of these cases the agreement of conditional sale was made not with the owner of the premises, as is the case here, but with a mere contractor, and without the knowledge or consent of the owner. Nor is the situation changed necessarily by the fact that the appellant accepted a chattel mortgage at the time of the sale and before the installation of the goods, for that was the situation before the court in Tifft v. Horton (supra), where it was said that' the chattel mortgage was evidence of the agreement that between the vendor and the owner the articles should remain personal property until paid for. It was error to direct judgment against the appellant Fishman on the face of the pleadings, and the order, in so far as appealed from, should be reversed, with ten dollars costs and disbursements, and the motion denied as to the defendant, appellant Fishman, with ten dollars costs.

Jerks, P. J., Burr, Thomas and Rich, JJ., concurred.

Order in so far as appealed from reversed, with ten dollars costs and disbursements, and motion denied as to the defendant, appellant Fishman, with ten dollars costs.  