I concur in the opinion of Mr. Justice POTTER.
The original lease was for a term of three years, from November 1, 1931, with an option of two years more, ending November 1, 1936.
The manager of defendant corporation testified that the building actually cost $4,600, and with oil tanks, pumps, air compressor and all else, the total cost was $5,175. He also testified, on cross-examination, and so without objection, that it was agreed:
"I could build anything I wanted to and take them off."
Asked why such agreement was not put in the lease, he said:
"I don't know, I didn't do that very good, I guess, I thought we would get along fine."
Plaintiff denied any such agreement and testified that the lease was brought to her fully prepared for signature.
I do not think it can be said from the terms of the lease (evidently a layman's selection of a printed form) that the parties intended thereby to constitute the use fixtures a permanent accession to the freehold.
The matter of annexation of use fixtures to the freehold is no longer of determining moment. Intention on the part of the landlord and tenant constitutes the main test.
The original term was short and the right of extension not long. Expensive use fixtures were necessary and it does not appeal to my sense of reasoning that, for so short a period, the parties intended such use fixtures a permanent accession to the freehold.
BUTZEL, SHARPE and TOY, JJ., concurred with WIEST, J. *Page 454