In re Whitlock Ave. in City of New York

• Decision Date: 07 July 1938
• Citation: 278 N.Y. 276,16 N.E.2d 281
• Parties: In re WHITLOCK AVENUE IN CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

278 N.Y. 276

16 N.E.2d 281

In re WHITLOCK AVENUE IN CITY OF NEW YORK.

Court of Appeals of New York.

July 7, 1938.

Proceeding in the matter of the application of the City of New York, relative to acquiring title wherever title had not been theretofore acquired, for the same purpose in fee, to the realty required for the opening and extending of Whitlock Avenue, from the northerly side of Leggett Avenue to the southerly side of Hunts Point Avenue, in the Borough of the Bronx, City of New York. From an order of the Appellate Division, 253 App.Div. 719, 1 N.Y.S.2d 655, affirming a final decree granting certain awards to the 430 East 59th Street Corporation and to the Acme Ribbon Mills, Inc., the City of New York appeals.

Orders reversed and matter remitted to Special Term for further proceedings in accordance with opinion. Appeal from Supreme Court, Appellate Division, First Department.

William C. Chanler, Corp. Counsel, of New York City (Julius Isaacs and Lewis Orgel, both of New York City, of counsel), for appellant.

Henry Herz, of New York City, for respondent 430 East 59th Street Corporation.

Nathan L. Goldstein, of New York City, for respondent Acme Ribbon mills, inc.

FINCH, Judge.

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 reerected 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, 176 N.E. 377.

The mere fact that the articles involved herein are attached to the floor does not render them fixtures. McRea v. Central Nat. Bank of Troy, 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...