In re Hemmer

• Decision Date: 06 May 1922
• Citation: 280 F. 414
• Parties: In re HEMMER et al.
• Court: U.S. District Court — Northern District of New York

280 F. 414

In re HEMMER et al.

United States District Court, N.D. New York.

May 6, 1922

Tracy, Chapman & Tracy, of Syracuse, N.Y., for trustee.

Olmstead, Van Bergen & Searl, of Syracuse, N.Y., for mortgagees.

RAY, District Judge.

In view of the conditional contracts of sale and the circumstances under which the personal property, machinery, etc., was placed in the building I think a question of fact is presented for the determination of the court.

I do not think it was intended to make this machinery a part of the realty, and in view of the contracts of conditional sale, and what was done by way of attaching same to the realty, do not think the personal property in question ever became a part of the realty and subject to the mortgage lien. True, a sort of foundation had to be placed under the boiler, and it is also true that a wall was erected to protect same; but this property can be removed with very little, if any, damage to these walls or to the building.

In view of Tifft v. Horton, 53 N.Y. 377, 13 Am.Rep. 537; Ford v. Cobb, 20 N.Y. 344; Davis v. Bliss, 187 N.Y. 77, 79 N.E. 851, 10 L.R.A. (N.S.) 458; Sisson v. Hibbard, 75 N.Y. 542, and other cases of like import, I hold that this personal property in question did not become a part of the realty, and subject to the lien of the mortgages, and that the trustee in bankruptcy is entitled to the same.

There will be an order accordingly.