APPEAL by the plaintiff, the Central Union Gas 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 17th day of March, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case on a trial at the New York Trial Term.
John A. Garver, for the appellant.
Clarence E. Thornall, for the respondent.
INGRAHAM, P. J.:
This action was brought for the conversion of certain gas ranges which had been delivered by the plaintiff for installation in certain apartment houses in course of construction in East One Hundred and Thirty-seventh street in the city of New York. The defense is that these gas ranges had been affixed to the realty; had been purchased by the defendant upon a sale of the property under a decree of foreclosure; and that the plaintiff had neglected to file the conditional bill of sale as required by section 112 of the Lien Law (Gen. Laws, chap. 49 [Laws of 1897, chap. 418], as amd. by Laws of 1904, chap. 698).
Upon the trial it appeared that a corporation known as the Ignatz Florio Company was in September, 1907, engaged in constructing apartment houses in East One Hundred and Thirty-seventh street, and made a contract with the plaintiff by which the plaintiff delivered to the Florio Company certain gas ranges to be installed in the kitchens of the apartments
erected upon the property. The buildings were designed for rental to separate tenants, each tenant renting one of the apartments. These ranges constituted the only method of cooking in the apartments and without them the apartments would clearly have been unrentable. These gas ranges were set up on a cement hearth connected with the gas pipe and a flue connection was made between the range and the flue leading from the apartment. What was called a lug was constructed in the wall of the building, the ranges were set into the lug and then rested upon the legs of the range. After being thus inserted they are connected with the gas pipe running through the building by certain elbows and joints screwed to the range and the gas pipe. There was then a flue connection made of stovepipe between the range and the flue; one end of the stovepipe was set on top of the range with the flue connection and the other set into the flue of the building. These ranges were delivered in January and February, 1908, and were affixed to the building in the manner stated by employees of the plaintiff during that period. One installment of what was called rental but what was really the purchase price for these ranges was paid, but the Florio Company failed to make any further payments. A mortgage had been placed upon this property by the Florio Company which was subsequently foreclosed and a judgment was entered under which the premises were sold on June 2, 1909, and a deed delivered by the referee to the defendant, the purchaser, who thereupon acquired possession of these apartment houses which included these gas ranges fitted to the buildings as aforesaid without notice of any claim of the plaintiff or any one else until March 19, 1910, when the plaintiff served a demand upon the defendant for the return of these gas ranges. These facts appearing upon the trial the Trial Term dismissed the complaint, holding that the defendant acquired a good title to this property under the provisions of section 112 of the Lien Law, the same provision being re-enacted in section 62 of the Personal Property Law (Consol. Laws, chap. 41; Laws of 1909, chap. 45).
The agreement under which these goods were delivered was executed by the Florio Company and by it the Florio Company agreed to hire from the Central Union Gas Company for a
period of not less than one year from the date of delivery of the appliances mentioned therein and pay a rental of seventy-five dollars per annum in advance, it being understood that the title to such appliances should at all times remain in the company regardless of sale, lease or transfer of the said premises. It was further provided in the event of the company removing the said appliances by reason of the consumer's failure to comply with the conditions of the contract all sums paid by the consumer under the agreement should be retained by the company as reasonable compensation for rent, injury to and wear and tear upon the said appliances up to the period when the last payment so made was due and payable; that the appliances should not be removed from the premises without the consent of the company. It was further understood and agreed that 'within one year from the date hereof the consumer has the option of purchasing from the Company the appliance described above at the rate of $12 each; or when six consecutive yearly payments have been made, aggregating four hundred and fifty dollars, the appliances above mentioned are to become the property of the consumer and the Company will furnish a bill of sale for same.' Although in the form of a lease, this was clearly a contract for a conditional purchase, for by complying with the conditions and paying the contract price therefor the gas ranges became the property of the purchaser. No copy of this contract was filed in any public office and no notice was given to the mortgagee, to the bidders at the sale under the decree of foreclosure or to the defendant, the purchaser at said sale, until nearly a year after the sale had been completed and the defendant had taken possession of the property.
Section 112 of the Lien Law, as amended by chapter 698 of the Laws of 1904, provides: 'Every such contract for the conditional sale of any goods and chattels attached, or to be attached, to a building, shall be void as against subsequent bona fide purchasers or encumbrancers of the premises on which said building stands, and as to them the sale shall be deemed absolute, unless, on or before the date of the delivery of such goods or chattels at such building, such contract shall have been ...