
    Catherine Geirke, Appellant, v. Julius Schwartz, Respondent.
    (Supreme Court, Appellate Term,
    May, 1897.)
    1. Mortgage — What passes under.
    Window frames, doors, blinds and sashes affixed to a building by a mortgagor after the making of the mortgage become a part of the realty and pass under the mortgage.
    
      2. Conversion — Property annexed to freehold cannot be recovered in.
    One H., who was engaged in building a house, gave to plaintiff a bill of sale of certain building material which he had procured therefor, but subsequently used a portion-thereon with plaintiff’s consent. H. thereafter conveyed the premises to defendant’s wife who had purchased at foreclosure sale, and defendant, finding some of the material missing, procured its return by aid of the police. Held, that plaintiff could not, in an action for conversion, recover for the property which had been annexed to tlie building.
    Appeal by plaintiff from judgment of the First District Court.
    H. M. Heymann, for appellant.
    M. Strassman, for respondent.
   McAdam, J.

It appears that one Henry Heine owned a lot of land in the Twenty-fourth ward on which he commenced the erection of a building. He purchased a quantity of material therefor from a firm of which the defendant was a member, and did not pay for it. It seems to have been sold to Heine in the usual course of trade, followed by delivery, so that he acquired title to it.

On May 19, 1896, in consideration of $245, Heine executed a bill of sale to the plaintiff of twenty-eight sashes, 950 feet of lumber, one box of nails and nine rolls of sheathing paper. This property was kept in the building and used as required in its completion-On July 31, 1896, Heine by quitclaim deed released his interest in the property to Gertrude Schwartz, wife of the defendant, to whom the property had about that time been sold'on foreclosure. After the completion of the purchase the defendant found that some of the sashes and other property had been taken from the building, and with the assistance of the police succeeded in recovering it, and, as the agent of his wife, restored it to the'building, where it was used in its completion as originally intended. Eor these acts the plaintiff - brought, the present action to recover $245 for conversion, and upon the trial .proved that the value of the property embraced in the bill of sale to her was that sum. Part of the property so included had previously been affixed to the freehold by Heine with the intention . of making it a permanent accession, thereto, and this with the implied consent of the plaintiff, and title thereto passed to the defendant’s wife under the deed given upon the foreclosure sale.

Things in themselves movable and having the character of personalty, such as window frames, doors, blinds, etc., may acquire that of realty by being fitted and' applied to use as a part of the realty, and pass with the land by a sale thereof. Permanent erections and improvements made by the mortgagor after the execution of a mortgage upon the land become part of the realty and are covered by the mortgage. Snedeker v. Warring, 12 N. Y. 170. And an owner of chattels which have been annexed.to a freehold* though Without such owner’s consent, cannot recover the same from a bona'fide purchaser' of the building. Rooney v. Stearns, 17 Week. Dig. 322.

Eeither the defendant nor his wife had any notice of the bill of sale or that the plaintiff made any claim to the sashes or other property enumerated in it, and in good, faith believed and purchased under the belief that all passed by the grant of the land. .Heine was allowed, after making the bill of sale, to remain in possession and control of the property as before — a circumstance which generally marks the ownership of property. It was apparently left with him to be dealt with as he pleased, certainly in a manner inconsistent with ownership by anyone- else. The plaintiff never asserted her title until the defendant restored the property to the building, and her claim then made should have been limited to the articles restored.

If the plaintiff had charged the defendant with the conversion of the property not permanently affixed to the freehold, particularly-specifying such portion and putting, a valuation on it apart from the rest, she might have complained of the ruling below. Put she claimed judgment for the entire value of the property included in her bill of sale whether annexed to the freehold or not, so .that the justice was required by the mode of trial adopted by the plaintiff to find for all or nothing. Tie apparently chose -the latter alternative and found for the defendant.

Under the peculiar circumstances of this case we think the parties ought to be held bound by the mode of trial adopted, and that the judgment should be affirmed, with costs.

Daly, P. J., and McAdam, J., concur.

Judgment affirmed, with costs.  