Russ Distributing Corp. v. Lichtman , 111 N.J.L. 21 ( 1933 )

The Bishop Electric Refrigeration Company entered into a conditional sale contract June 19th, 1928, with one Max Rosenberg, to furnish and install a refrigerating system in an apartment house known as 109 Johnson avenue, Newark. Title to the premises was, at the time, in the Dorma Construction Company, and appellant was the holder of a mortgage covering the land and building and which antedated the conditional sale contract. Just what position or relation, if any, Rosenberg occupied toward the premises does not definitely appear although it is said he represented himself as being the owner thereof to the refrigeration company.

Under the before referred to contract there was installed in the building a refrigerating plant consisting of three compressors located in the basement. These were connected up by pipes or risers carried up through the floors and connecting with thirty-five coils contained in thirty-five cabinets, one in each apartment. The total contract was $5,250 upon which a single payment of $500 was made. This contract appears to have subsequently become the property of the respondent. On January 16th, 1931, a proceeding in replevin was instituted by the respondent, and under the writ, the compressors, and all the cabinets and coils were removed from the premises, so that nothing of the refrigerating system remained therein except the risers before referred to.

In the meantime and on November 9th, 1929, appellant had become the owner of the premises by purchase at a sale under proceedings for the foreclosure of her mortgage before referred to.

The conditional sale agreement was filed in the office of the register of deeds of Essex county on November 2d 1928. The appellant had no notice of the conditional sale contract and did not assent to the reservation of property in the vendor.

The trial court at the conclusion of the trial of the action in replevin directed a verdict in favor of the plaintiff-respondent upon the ground that in removing the parts of the system "all they had to do was uncouple the coupling and take the units out and that there was no material damage to the freehold or actual injury by the removal. They did not injure it in any way."

The uncontradicted proof was that the compressors stood on the cellar floor and were coupled up to the tubing or pipes which ran to the several apartments and there were coupled to the cooling units in each cabinet which latter stood on the floor and were not permanently attached or fastened thereto.

From the judgment entered upon such verdict, the appellant, defendant below, appeals.

"Material injury to the freehold" as used in the Uniform Conditional Sales act (Pamph. L. 1919, ch. 210, p. 461), has been definitely construed and defined by this court, with respect to equipment such as refrigerating plants in apartment houses, as in one sense being physical injury but in another "injury to the institution of which the structure is a part."Domestic Electric Co. v. Mezzaluna, 109 N.J.L. 574, approving Future Building and Loan Association v. Mazzocchi,107 N.J. Eq. 422; MacLeod v. Walter J. Satterthwait, Inc., 109 Id.414; affirmed, 113 Id. 238.

These authorities make it perfectly apparent that it was error to direct a verdict in favor of the plaintiff below, as was done, but that, on the contrary, had the court been so moved, which it was not, a verdict should have been directed in favor of the defendant below.

This conclusion is dispositive of the matter before us and it becomes unnecessary to consider any other grounds urged for reversal.

The judgment under review is reversed.