East New York Electric Co. v. Petmaland Realty Co.

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: LEHMAN
• Citation: East New York Electric Co. v. Petmaland Realty Co., 243 N. Y. 477 (N.Y. 1926)
• Decision Date: 16 November 1926
• Parties: EAST NEW YORK ELECTRIC COMPANY, Respondent, v. PETMALAND REALTY COMPANY et al., Appellants, Impleaded with Others.

243 N.Y. 477

154 N.E. 530

EAST NEW YORK ELECTRIC CO., Inc.,

v.PETMALAND REALTY CO., Inc., et al.

Court of Appeals of New York.

Nov. 16, 1926.

Action by the East New York Electric Company, Inc., against the Petmaland Realty Company, Inc., and others. From a judgment of the Appellate Division (214 App. Div. 730, 210 N. Y. S. 844), affirming a judgment of Special Term in favor of plaintiff, directing foreclosure and sale, defendants appeal.

Reversed.

See, also, 214 App. Div. 798, 823,210 N. Y. S. 845.

Appeal from Supreme Court, Appellate Division, Second department.

Theodore Baumeister and David E. Goldfarb, both of New York City, for appellants.

Bernard Breitbart, of New York City, for respondent.

LEHMAN, J.

The plaintiff had made two contracts in the autumn of the year 1921 with Petmaland Realty Co., Inc., whereby the plaintiff agreed to furnish and install electric wiring and electric fixtures upon real property belonging to Petmaland Realty Co., Inc. Each contract provided that ‘title to goods to vest in vendor until fully paid for in cash. If said property is retaken by vendor, sums paid thereon shall be deemed to have been paid for use, wear, and tear.’ After the plaintiff had fully or substantially performed its contracts, and the defendant had failed to pay the agreed price of $560 which was due under the contracts, the plaintiff brought this action, asking, among other things, that the court ‘adjudge and decree that the plaintiff has a valid and subsisting lien upon the real property above described for the sum of $560,’ and that ‘the said premises may be decreed to be sold according to law.’ There is no allegation in the complaint which would show that the plaintiff has a mechanic's lien upon the real property of the defendants or that the plaintiff has complied with the provisions of the Lien Law (Cons. Laws, c. 33) in regard to the creation or enforcement of such liens. The complaint alleges, and after the trial the court found:

‘That the electric wiring and electrical fixtures so furnished by the plaintiff upon the real property above described were attached and annexed to, and became part of, the real property above described, and became part, parcel, and fixture of the same, and that the same could not and cannot be detached from the said real property without substantial injury to the building.’

From the findings of fact made at the trial, the court drew the conclusion of law:

‘That by the filing of the said conditional agreements and by the furnishing of the said electrical wiring and electrical fixtures, the plaintiff acquired and now has a good and valid lien upon the real property above described and against all the right, title, and interest of the defendants.’

The statutory provisions regulating ‘constracts for the conditional sale of goods and chattels,’ now article 4 of the Personal Property Law (Cons. Laws, c. 41), do not in terms or by fair intendment create any new rights in the vendor under a contract of conditional sale. The vendor's rights under the contract are defined by the terms of the contract itself, subject, however, to the provisions of the statute that:

‘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 incumbrancers 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 duly and properly filed and indexed as directed in this article,’ etc. Personal Property Law, § 62.

We need not now decide whether upon this appeal we may review the correctness of the so-called finding of fact, which has been unanimouslyaffirmed, that:

‘All the defendants except the defendant Petmaland Realty Co., Inc. * * * have or claim to have some interest or lien upon the premises above mentioned, which interest or lien has accrued subsequently and is subject, subordinateor secondary to the lien of the plaintiff herein.’

We assume, for the purposes of this appeal, that any right or title which under the contract of...