Barasch v. Kramer

Hendrick, J. (concurring).

On February 28, 1903, the

Union Granite Company placed twenty washtubs in the building designated in the return as Ho. 319 East Seventy-fifth street, then owned by Lottie Kurzynsky, who agreed to pay for said tubs within sixty days. Under the agreement between them, the seller retained title and the right to remove the tubs on default of payment. This agreement of conditional sale appears to have been filed with the register March 10, 1903, and refiled March 8, 1904, and a duplicate copy was retained by each party.

In Hovember, 1904, said Lottie Kurzynsky conveyed the premises to Philip Menschel, and the deed was recorded the same month.

Within a year after said March 8, 1904, said Union Granite Company commenced an action against Lottie Kurzynsky and the then owners of said premises to replevy said tubs.

In February, 1905, said Menschel by a full covenant deed conveyed said premises to defendants herein for $100 and other valuable considerations, subject to two mortgages.

In October, 1905, defendants entered into a written contract by which they agreed to sell to plaintiff herein, and he agreed to purchase said premises, including the personal property used in connection therewith. The agreed consideration was $31,800, of which $1,000 was then paid, $6,675 was agreed to be paid on delivery of the deed, December 1, 1905, and the remainder consisted of mortgages existing on the property.

On December 1, 190-5, said deed containing full covenants was delivered. The expressed consideration was $100 and other valuable considerations. The amount due on the first mortgage was $20,000 and on the second was $4,125. No reference was made to personal property.

In October, 1906, judgment in favor, of the Union Granite Company was entered in said action of replevin. An answer had been served by the defendants therein, but they did not appear at the trial.

Plaintiff conveyed to Fannie Weinfeld by a deed containing the same conditions and reservations contained in the contract and deed executed to him by defendants. In order to prevent the removal of the tubs after judgment in replevin, it is probable that Fannie Weinfeld settled the granite company’s claim.

Neither plaintiff nor defendants had notice of the replevin, action, nor did plaintiff have any notice of the bill of conditionál sale or of the status of the tubs.

This action was tried on oral pleadings and judgment rendered for $143, the agreed value of the tubs, with interest thereon and costs.

While the -substance of the oral pleadings has not been returned, it is evident, from the bill of particulars and the arguments of counsel on both sides, that plaintiff’s claim arose out of defendants’ failure to deliver the tubs, considered as personal property.

I am of opinion that plaintiff has mistaken his remedy in proceeding upon the theory that the tubs are personal property, instead of bringing an action on the covenants in his deed.

The contract under which the tubs were sold empowered the sellers “ to enter upon said premises and remove some laundry tubs and fittings that have been annexed to the realty.” They are referred to in the return as washtubs. On page “ 2 ” of respondent’s brief they state that, “ in order to prevent the ripping out of the tubs, the plaintiff paid to the attorney for the present owner a certain amount.” The contract of sale by the granite company included fittings, which would be superfluous in the case of rural washtubs. While the evidence is meager, I think we may fairly infer that the washtubs and fittings sold in 1903 had become part of the realty before judgment in replevin was recovered in 1906.

As between the granite company and Lottie Kurzynsky, the tubs remained personal property, as it was so stipulated in the contract between them. Perhaps they partook of the nature of household goods, so far as to be excepted from a conveyance of the premises, by virtue of the retention of duplicate copies of the contract under the provisions of the Lien Law as it then existed. , This, however, is not clear; for, after laundry tubs have become set and attached to the water pipes, they are usually considered a substantial part of the building; and it is a. general rule that as to such fixtures their “ character as personalty will not be preserved, even by special agreement to accomplish that result.” Davis v. Bliss, 187 N. Y. 83. In their essential nature, the tubs were fixtures. Bath-tubs, wash-basins, faucets, heating boilers and water pipes are part of the realty. Cohen v. Kyles, 27 Mo. 122; Smyth v. Sturges, 108 N. Y. 495; Kirchman v. Lapp, 19 N. Y. Supp. 831; Jermyn v. Hunter, 93 App. Div. 175; Kirk v. Crystal, 118 id. 32.

In the construction of contracts, courts are not accustomed to stray far from the intention of the parties. In the present case, that intention does not seem to be doubtful. Plaintiff probably saw the tubs as he saw other fixtures, but there is nothing in the evidence to show that he believed them to be personal property. It does appear that he had-no notice of the conditional sale, the status of the tubs or the action in replevin. As title to the tubs is not in question, I am inclined to hold that, as to strangers to the contract of conditional sale, the tubs are an inseparable part of the real estate and, if plaintiff has suffered any loss, he must seek his remedy under the covenants of his deed.

There is another ground on which I must vote for reversal. The action was brought on the contract to convey, although at the time therein stipulated a deed of conveyance was duly executed and accepted. There was no covenant in the contract relating to personal property, no separate consideration for the transfer thereof, no reference thereto, except the following: “All personal property contained in said premises and used in connection therewith is included in this sale.”

Assuming that the tubs were personal property and were in use in connection with the premises, they ought to have been included in the deed, or otherwise transferred as personal property. But, after accepting a deed which omitted part of the property contracted for, plaintiff’s remedy was an action to reform the deed, for the general rule is that the deed merges the contract (Schoonmaker v. Hoyt, 148 N. Y. 425); and “ it needs no argument to prove that a simple covenant to convey is performed by a conveyance.” Morris v. Whitcher, 20 N. Y. 46; Murdock v. Gilchrist, 52 id. 246. If the contract had contained a covenant relating to the personal property, or. if the consideration therefor had been separate and the return had shown that it was paid, or if there had been an oral agreement at the time the deed was delivered by which the agreement to transfer the personal property should survive the deed, then plaintiff might have maintained an action for breach of contract to transfer personal property; because oral agreements are not affected by a deed, and “ distinct and separable provisions ” of a written contract are not merged in a deed. Witbeck v. Waine, 16 H. T. 582; German-American Real Estate Co. v. Starke, 84 Hun, 430; Stearns v. Lichtenstein, 48 App. Div. 501; Lewis v. Seabury, 74 N. Y. 409; Disbrow v. Harris, 122 id. 365.

I have assumed that plaintiff reimbursed his grantee for moneys paid by her to prevent the removal of the tubs, but I find no concession or evidence to that effect in the return. It seems, however, to be conceded or assumed in the briefs.

For these reasons I agree with Justice Giegerich that the 'judgment should be reversed and a new trial ordered, with costs to appellants to abide the event.