Tyson v. Post

• Decision Date: 17 January 1888
• Citation: 15 N.E. 316,108 N.Y. 217
• Parties: TYSON et al. v. POST et al. DUTCHER v. SAME.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 217

15 N.E. 316

TYSON et al.

v.POST et al.¹

DUTCHER

v.SAME.¹

Court of Appeals of New York.

January 17, 1888.

Appeal from general term, supreme court, second department.

These actions were brought by Henry Tyson and others, and George G. Dutcher, committee, etc., plaintiffs, against Henry A. V. Post, impleaded with Maron A. Cooney and another, defendants, for the foreclosure of two concurrent purchase-money mortgages made to them by defendant Cooney. Plaintiffs were owners in common of certain premises in Long Island City, upon which were engines, boilers, machinery, railways, chains, shafts, and personal property, going to make up and connected with certain marine railways, and agreed in writing to sell the property to one Hatton, the nominee of John Carroll, a dealer in second-hand machinery. The defendant Myron A. Cooney, the brother-in-law of Carroll, became the assignee of the contract of sale. Defendant Henry A. V. Post furnished and paid to plaintiffs, at the request of Carroll, $6,200, the cash payment required to close the contract for a conveyance of the premises to Hatton or Cooney, and plaintiffs took the mortgages, to foreclose which these actions were brought, from Cooney for the balance of the purchase money, who, simultaneously with the conveyance to him of the mortgaged premises, conveyed the same to the defendant Post. It was agreed by plaintiffs with Cooney that he or his assigns might remove the whole or any part of the plant of the marine railway, in consideration of the receipt of the cash payment of $6,200. The evidence was conflicting as to when this right of removal was to be exercised. Plaintiffs contended that the removal was to be made before the commencement of any legal proceedings to foreclose the mortgages, which had not been doen; defendant Post, that his right to remove and sell was unrestricted. Upon the trial, at special term, the court found that the marine railway, machinery, etc., were covered by the mortgages, which finding, upon appeal to the general term, was reversed. From the decree of the general term plaintiffs appeal to this court.

Fraser & Minor, for appellants.

Evarts, Southmayd & Choate and Prescott Hall Butler, for respondents.

ANDREWS, J.

The question whether the defendant Post acquired title to the plant and machinery of the marine railways embraced in the plaintiffs' mortgage, as security for the $6,200 paid by him to the plaintiffs at the request of Carroll, to enable the latter to complete the first payment on the contract with the plaintiffs for the purchase of the land, does not depend upon the character of the property, whether real or personal, when placed upon the mortgaged premises. There can be little doubt, however, that the machinery, shafting, rollers, and other articles became, as between vendor and vendee, and mortgagor and mortgagee, fixtures, and a part of the realty. McRae v. Bank, 66 N. Y. 489. But as by agreement, for the purpose of protecting the rights of vendors of personalty, or of creditors, chattels may retain their character as chattels, notwithstanding their...