In dissenting, I will express my views so that the Legislature may understand the confusion which has been caused by the present state of the statutes.
This court held in Central Union Gas Company v. Browning (210 N.Y. 10) that, according to the evidence in that case, gas ranges installed in housekeeping apartments were not so attached to the building that as matter of law they became part of it. Retaining their characteristics as personal property they did not come within the conditional sales statute as it existed at that time. (Personal Property Law [Cons. Laws, ch. 41; Laws of 1909, ch. 45], sec. 62, as amended in 1904.) That statute read: "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 *Page 20 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."
The law is based upon fundamental principles and for a decision like this we must look through the facts to discover if possible the principle involved. For instance the law does not under all circumstances classify property. Buildings are realty, and such articles as stoves and ranges and refrigerators are personalty. There are circumstances, however, when the law considers realty as transformed into personalty and chattels so annexed to the realty as to become a part thereof. In other words, ranges or cook stoves may be so attached and annexed to the realty as to lose their identity as merely personal property; it depends upon circumstances, conditions, custom and the various other elements which enter into a question of fact. All these matters are questions of fact and have so been treated by the courts. A range, therefore, at one period of time and under certain conditions might be personalty; at another time it might be considered a chattel real. (Jennings v. Vahey, 183 Mass. 47.) The nature of the article and the object and effect and the mode of annexation are all to be considered. (Hook v. Bolton,199 Mass. 244.) In that case, writing of gas stoves, kitchen ranges, etc., the court said: "It is entirely possible that the mode of construction and use of certain kinds of houses may be such that articles of this kind will be made a part of the house for permanent retention and use in the places where they are put. If it becomes a practice to build and use houses in such a way these articles may be put in as fixtures. As to the application of the law, we agree with Lord HALSBURY in what he said in Leigh v.Taylor ([1902] App. Cases, 157, 161) in regard to the decisions of the courts: `The facts have been regarded in different aspects, according *Page 21 to the fashion of the times, the mode of ornamentation, and the mode in which houses were built, and the degree of attachment which from time to time became necessary or not according to the nature of the structure which was being dealt with.'"
The court in the Browning case cited Cosgrove v.Troescher (62 App. Div. 123), which in turn cited Freeland v.Southworth (24 Wendell, 191). The Cosgrove case dealt with carpets, window shades, gas fixtures and movables; also ranges not set in any place specially constructed for them and which set out wholly disconnected from the walls, taking on the nature of portable furnaces, stoves and stove pipes. These articles were always considered personal property and at the time in which these cases were written were customarily carted about by the tenant from place to place. They were not deemed or considered in the habits of the people to be a part of the realty or the rented establishments. The cases cited in these various authorities dealt with a time and a condition where these necessary utensils, furnishings or stoves were part of the belongings of the tenant. The mode of living did not make the cook stove the almost universal equipment of houses and apartments supplied by the landlord or owner.
But there comes a time when the law must keep abreast of the changes in social conditions; when we as judges must recognize the circumstances under which the business of housing is now conducted. We must look at the facts as they are and not try to press them into an old-fashioned mold. Today people live in apartments. Some of these, as we all know, are massive affairs, housing hundreds of families and occupying entire blocks. They are owned and operated by realty corporations existing solely for this purpose. They are equipped with modern improvements. Science has revolutionized the art of living. The gas range or cook stove and electric light fixtures and ice boxes are now common in most *Page 22 every apartment. The tenants do not furnish these things; they are considered a part of the realty and are so treated by every owner and by the tenants. No tenant carries away any of these things when leaving. The mortgagee would be startled if all the ranges and radiators were removed by the mortgagor. They are attached to and form part of the realty as a fact, and it is only a fiction of law which considers them under certain circumstances as strictly personal property. If intention has any bearing upon the question of fixtures it is quite apparent that under modern conditions the gas range in the kitchen has become a part of the realty. "The controlling intention is not the initial intention at the time of procuring the article in question, nor the secret intention with which it is affixed, but the intention which the law deduces from all the circumstances of the annexation." (Roderick v. Sanborn, 106 Maine, 159.) "The fashion of the times and the mode in which houses are built" no longer classify the cooking range as portable or movable within the meaning of the older cases.
This was the condition of affairs when chapter 642 of the Laws of 1922 amended the Personal Property Law in relation to conditional sales, by conforming it to the law recommended for adoption by the Commissioners on Uniform State Laws. This provided:
"§ 67. Fixtures. If the goods are so affixed to realty at the time of a conditional sale or subsequently as to become a part thereof and not to be severable wholly or in any portion without material injury to the freehold, the reservation of property as to any portion not so severable shall be void after the goods are so affixed as against any person who has not expressly assented to the reservation. If the goods are so affixed to realty at the time of a conditional sale or subsequently as to become part thereof but to be severable without material injury to the freehold, the reservation of property shall be void after the goods are so affixed as against subsequent purchasers *Page 23 of the realty for value and without notice of the conditional seller's title, unless the conditional sale contract, or a copy thereof, together with a statement signed by the seller briefly describing the realty and stating that the goods are or are not to be affixed thereto, shall be filed before such purchase in the office where a deed of the realty would be recorded or registered to affect such realty."
In his notes on this provision of the Uniform Act (2-A Uniform Laws, Annotated, § 64), George G. Bogert says: "This section is intended to establish a special filing section for the conditional sale of fixtures. * * * if the conditional sale is concerned with goods which are to be attached to land, the object so sold is to be held out to the world as a part of the realty, although the parties to the conditional sale contract may agree that it shall keep its status as personalty. Creditors and purchasers, the persons for whose benefit the recording acts are enacted, are going to regard the goods conditionally sold as a part of the realty to which they are attached and any searches made will be concerned with real property records. The theory of the Act is that a conditional seller of a fixture should be given protection and allowed to retain title as security for the payment of the price of the fixture, but that in order to retain such title he should be required to give notice adapted as nearly as possible to reaching dealers in real property."
To me it is quite evident that taking into consideration modern conditions and the nature and purpose, as thus declared, of the Uniform Sales Act, cook stoves and ranges placed in the ordinary apartment house and attached in the place built and designed for them become part of the building; a portion of the apartment, the same as doors and windows or mantel pieces; form "a part of the realty;" they are goods which are so affixed to the realty as to become a part thereof, but to be severable without *Page 24 material injury to the freehold within the meaning of section 67, above quoted. This was intimated, if not decided, in Kohler Co. v. Brasun (249 N.Y. 224).
Holding these views, I am forced to dissent from the majority opinion.
CARDOZO, Ch. J., POUND, LEHMAN, O'BRIEN and HUBBS, JJ., concur with KELLOGG, J.; CRANE, J., dissents in opinion.
Judgment accordingly.