Matter of City of New York (Whitlock Ave.)

This is a condemnation proceeding instituted to acquire title in fee to real property required for the opening and extending of Whitlock avenue in the borough of the Bronx, New York city. Two awards are involved on this appeal.

The Acme Ribbon Mills, Inc., as a lessee, maintained and operated a silk ribbon manufacturing business in a factory building located on the condemned property. In other words, this lessee rented space in a completed building and brought to it its own machinery. The city petitioned to condemn the real property, and the Acme made claim for compensation for the taking of machinery which it had installed in the premises. On behalf of Acme there was testimony that the value of the machinery and other property which as lessee it owned was approximately $65,000. The court made an award of $45,000.

The 430 East 59th Street Corporation owned a one-story brick building and a one-story and basement brick building which were connected and equipped as a laundry. It operated the laundry through the Regent Laundry Service Corporation, its wholly owned subsidiary. The taking involved the one-story brick building, and a small portion of the one-story and basement brick building. In addition to the award of $45,000 for the land and building, it was awarded $134,000 for the laundry equipment in the portion of the property not taken. The Appellate Division has unanimously affirmed the decree granting these awards. The appeal is by permission of this court.

We are to determine whether the machinery and the other articles for which the awards have been made are part of the real property taken by the city in the condemnation proceeding.

(1) The Acme Ribbon Mills, Inc., received an award of $45,000 for machinery, looms, harnesses, and loose extra parts used in connection with the looms. The spare parts were standard articles bought from dealers. The harnesses were interchangeable on these looms and were not affixed to the building. The looms themselves were attached to the floor by screws and bolts, but this was only to keep them from vibrating or shifting, and they could be removed without any injury to themselves or to the freehold. Looms of this type are completely erected by the manufacturer in his plant, are then dismantled by the manufacturer before shipment to the purchaser, and re-erected after delivery. They can be dismantled and re-erected as often as necessary. In fact, the looms of the claimant had been purchased second hand, and had been moved several times as the claimant moved its business.

A tenant is entitled to compensation in condemnation proceedings for such fixtures as would have become part of the realty if they had been installed permanently by the owner of the fee. (Matter of City of New York [Allen St.], 256 N.Y. 236.)

The mere fact that the articles involved herein are attached to the floor does not render them fixtures. (McRea v. CentralNat. Bank, 66 N.Y. 489, 495.) Machinery normally is personal property and is not deemed a fixture except where it is installed in such manner that its removal will result in material injury to it or the realty, or where the building in which it is placed was specially designed to house it, or where there is other evidence that its installation was of a permanent nature. In the absence of such proof the machinery does not become a fixture and a part of the realty, but remains personal property and is removable by the person who installed it. There is no such evidence of permanent installation concerning the looms involved in the case at bar. They were affixed to the floor merely for the purpose of maintaining their stability, and they were readily removable. There is no reason why such looms or the harness or the other parts used in connection with them should be held to be a part of the realty. In Murdock v. Gifford (18 N.Y. 28), substantially similar looms, although attached to the building, were held to be personal property.

Of the award, about $3,800 was granted to the Acme Ribbon Mills, Inc., for machines, including a motor and winding, warping and quilling machines. All of these were readily removable, and could be used elsewhere. There was no evidence of permanent affixation. Thus like the looms, their use on the premises did not transform them from personal property to realty. For such personal property the claimant is not entitled to an award.

As to the office partitions and the electric wiring, the evidence supports the finding that they are fixtures for which an award should be made.

(2) As noted, the 430 East 59th Street Corporation was granted an award in addition to that given for the land and building actually taken. This was on the basis of the rule that where part of a larger tract used for a single purpose is taken, the owner is entitled not only to the value of the land actually taken, but to the difference between the value of the remaining real property as it was before the land was taken, and its value after the taking. (Banner Milling Co. v. State, 240 N.Y. 533. Cf.Matter of City of New York [West 10th St.], 267 N.Y. 212.) In determining the value of this remaining real property for the purposes of making the award, there were included, however, machinery and other laundry equipment for which an award of $134,000 was made. This machinery and equipment should be included only if they are fixtures and, therefore, part of the realty.

The claimant's inventory and appraisal of these articles includes many items which were not attached to the realty, such as steel lockers, cabinets, trucks, racks, tables, sewing machines, and the like. Included also are many items which were bolted to the floor merely to maintain their stability, such as ironers, sorting tables, washers, extractors and similar machinery. Although some of these machines had steam and water connections, they could be readily removed by disconnecting the unions which were attached to the piping. Concerning these items there can be no doubt that they did not constitute fixtures.

The question is more difficult when we consider the substantial machinery. There is evidence, however, that much of this, despite its size and weight, was readily removable and was not installed in a permanent manner. Most, if not all, of this machinery, had been removed from the claimant's earlier place of business. Only such machinery as cannot be removed without injury to it or the freehold, or concerning which there may be other evidence of an installation of a permanent nature, should be held to constitute fixtures.

There is no definite statement of just what property was included in the award, or of the amount awarded for each item. For this reason a new trial should be granted. (Matter of Cityof New York [Woolhiser], 250 App. Div. 197. Cf. Matter ofCity of New York [North River Water Front], 118 App. Div. 865; affd., 189 N.Y. 508.)

The orders should be reversed and the matter remitted to the Special Term for further proceedings in accordance with this opinion, with costs to abide the event. (See 278 N.Y. 714.)

CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, LOUGHRAN and RIPPEY, JJ., concur.

Orders reversed, etc.