
    Louis Baldinger and Oscar Kupferman, Respondents, v. Isaac Levine, Appellant.
    
      Sale of gas fixtures to a contractor, who places them in a building which is thereafter sold under the foreclosure of a mechanic's lien — the gets fixtures are ‘‘household goods” — when the filing of the contract of sale is not notice — what evidence is calculated to mislead a jury.
    
    A firm of builders purchased a quantity of gas fixtures and installed them irt buildings which they were then erecting. Subsequently, and before the gas fixtures had been paid for, the buildings were sold in an action to foreclose a. mechanic’s lien.
    In an action brought by the vendors of the gas fixtures against the purchaser of the buildings at the sale in the foreclosure action to recover damages for their conversion, the plaintiffs contended that the sale of the fixtures was a conditional one, while the defendant contended that the sale, was absolute.
    Upon the trial, the court, over the defendant’s objection, admitted in evidence a copy of the alleged agreement of conditional sale which had been filed prior to the time when the defendant took title for the purpose, as stated by the plaintiffs’ counsel, of showing that the defendant had notice of the plaintiffs’ claim to the gas fixtures.
    It appeared that this contract had been executed and delivered in duplicate and the Lien Law (Laws of 1897, chap. 418, § 115, as amd. by Laws of 1898, chap. 354) provides that when contracts for the conditional sale of household, goods are so executed and delivered, the provisions relative to filing the contract shall not apply,
    
      Held, that the gas fixtures were “household goods,” within the meaning of that ■ term as used in the Lien Law;
    That the filing of the contract was, therefore, unnecessary and did not operate as constructive notice;
    
      That the contract, coupled with the statement of the plaintiffs’ counsel, when it was offered in evidence, was calculated to create in the minds of the jury the impression that the defendant had wrongfully attempted to gain possession of the plaintiffs’ property and that its admission was erroneous;
    That it was also error to admit in evidence the judgment roll in the action brought to foreclose the mechanic’s lien, for the purpose, as stated by the plaintiffs’ counsel, of showing that the plaintiffs were not made parties to that action, as this evidence was also calculated to create the impression that the defendant had obtained possession of the gas fixtures by a high-handed proceeding regardless of the plaintiffs’ rights.
    Appeal by the defendant, Isaac Levine, from a judgment of the Municipal Court of the city of Rew York, .borough of Brooklyn, in favor of the plaintiffs, entered on the 15tli day of December, 1902.
    
      Joseph Rosenzweig, for the appellant.
    
      Miles Rosenbluth, for the respondents.
   Woodward, J.:

Prior to March 22, 1902, the plaintiffs delivered to the firm of Glickman Brothers, builders, certain gas fixtures which that firm thereupon installed in buildings then being erected by them in the city of Rew York. Subsequently an action was brought against Glickman Brothers by certain of that firm’s creditors, strangers to this action, to foreclose a mechanic’s lien on the premises where the gas fixtures had been hung, and the defendant took title to the said premises., with the appurtenances and improvements thereon, by referee’s deed made pursuant to the judgment of foreclosure and sale in said action, on March 22, 1902. The contest at the trial was as to the title to the said gas fixtures, under the contract of sale thereof by the plaintiffs to Glickman Brothers, the plaintiffs contending that contract was a conditional one, ownership remaining in the vendors until payment of the purchase price in full, which it was conceded had not been made, and the defendant meeting this contention with evidence that the sale to Glickman Brothers was absolute in its terms. It is urged on this appeal that the plaintiffs did not show their ownership and right to possession of the gas fixtures by a sufficient preponderance of evidence to entitle them to a judgment against the defendant for conversion of the property.

There is a square conflict in the evidence upon the subject of the contract between the plaintiffs and their vendees, and a careful examination of the record so strongly suggests that the judgment escapes being contrary to the weight of evidence by the narrowest margin, that any evidence improperly admitted over the defendant’s objection must have been materially prejudicial to the defendant. We think the defendant’s exceptions in at least two instances require a reversal of the judgment.

The trial court admitted in evidence, over the defendant’s objection, a copy of the alleged conditional agreement of sale which was filed in the register’s office on the 22d day of October, 1902, some six months after the date of the execution of the original agreement, “ for the purpose of showing,” as was stated by the plaintiffs’ counsel, “ that the defendant in this action had notice of the existence of the .claim to the gas fixtures in the premises he had purchased after the filing of this paper.” But it appears that this contract was executed and delivered in duplicate, and it is expressly provided in the Lien Law (Laws of 1897, chap. 418, § 115, as amd. by Laws of 1898, chap. 354) that, when contracts for the conditional sale of household goods are so executed and delivered, the provisions relating to the filing (§§ 112-114, as amd. by Laws of 1900, chap. 248) shall have no application; and “ gas fixtures ” such as were the subject of this contract, are “ household goods ” within the meaning of that term as used in the Lien Law. (Iden v. Sommers, 18 N. Y. Supp. 189; affd., Id. 779; Kerby v. Clapp, 15 App. Div. 37, 43.) The filing being unnecessary it could not operate as constructive notice; and yet it is easy to see how a doubt might have been created in the minds of the jurors as to the defendant’s bona, fides; how this paper, with the statement of counsel when it was offered in evidence, might have suggested a design on the part of the defendant wrongfully to get possession of the plaintiffs’ property. We think the admission of this paper was error.

Again, the judgment roll in the action against Glickman Brothers to foreclose the mechanic’s lien was offered in evidence “ for the purpose of showing that the plaintiffs in this action were not made defendants in the action to forclose the mechanic’s lien under which the defendant got title to the property.” We think the defendant’s exceptions to the admission of this judgment roll as evidence raises another point of error. Obviously, the plaintiffs in this action were not proper parties defendant in that action. This is true on the plaintiffs’ own theory of a conditional sale. They at best had only a contingent interest in the property which they themselves insist formed no part of the realty. The inevitable suggestion to the jury by this evidence, and, again, by the remarks of counsel, was that the defendant had obtained possession of the plaintiffs’ property by a high-handed proceeding, regardless of the plaintiffs’ rights. We think this also was error.

It is by no means impossible that this evidence may have had some effect upon the determination of the jury. “ It rests with the respondent to show that it was harmless, and could by no possibility" have prejudiced the defendant.” (People v. Koerner, 154 N. Y. 355, 376, citing Greene v. White, 37 id. 405, 407; Stokes v. People, 53 id. 164; People v. Greenwall, 108 id. 296, 303.) The plaintiffs have not sustained this burden.

The judgment should be reversed and a new trial ordered.

Goodrich, P. J., Bartlett, IIirsohberg and Jenks, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  