This action was brought to recover the value of certain fixtures attached to premises in the city of Brooklyn, of which the plaintiff was the owner and landlord, and the defendants were the tenants. Those fixtures were removed' by the tenants when they left the premises. They had been put in by the defendants, who claimed the right to remove them by agreement with their landlord. The defendants entered into possession of the demised premises under a written lease for the term of one year and eight months from the 1st day of September, 1888, and it was while they were in possession under this first term that the fixtures were put in the property by them. A new lease was made for an additional year with a stipulation for two renewals of a year each and the defendants continued in possession until May 1, 1892,-and when they left they removed the fixtures, being those specified in the bill of particulars . appearing in the record.
It is the settled law of this State that where a tenant has the right to take away fixtures put by him on the premises demised, if he takes a new lease of the premises, without making any claim or mention of that right, it is gone. Loughran v. Ross (15 N. Y. 192), where it is said: “ Elementary writers are very well agreed that when a. tenant continues in possession under a new lease or agreement his right to remove fixtures is determined, and he is in the same situation as if the landlord, being seized of the land with the fixtures, *204liad demised.both to him.” (Citing authorities.) The ruling in the case referred, to is commented upon in Lewis v. O. N. & P. Co. (125 N. Y. 350), where it is remarked that that ruling was placed upon quite technical reasoning, supported, it is true, by some authorities, but that it was not one of those cases “whose principle should he extended.” Still i't is recognized that where there is a. new lease and not a mere; holding over without, a new agreement, what was decided in Loughran v. Moss remains authoritative. The rule laid down in that case would, therefore, control here were it 'not that the record before us discloses the existence of an outside agreement, which authorized the defendants to remove these fixtures at the expiration of their term on the 1st ' of May, 1892. That agreement was by parol, and it is claimed by the appellant that it cannot be resorted to to vary the terms or stipulations of the renewal lease made in 1889. ' That question is not properly raised by this record. In the defendants’ answer it is alleged that after the execution of the first lease certain verbal arrangements, were entered into between the lessor and the lessees by which the lessor agreed to allow the lessees to remove the fixtures involved in this action, and upon the trial, by the consent of the plaintiff’s counsel^ the answer was amended by allowing the insertion of an allegation that at the time of the making'of the lease, in 1889, there was an agreement made- and entered into between the parties, and that, as-part of that agreement, the. defendants were. to have the right to remove such fixtures as they had placed on the premises, and that that right Was preserved in spite of the renewals. That is the substance of the amendment allowed, the court saying that it permitted the amendment in the terms the plaintiff’s counsel was willing to concede, and that the answer should stand amended as stated by the court and consented to by the plaintiffs’ counsel. Evidence of "this agreement, independent of the renewal lease, came into the case without objection. Mary B. Ely, one of the defendants,. testified that they took a lease -of’ the premises in the spi-ing of 1889, which continued until they left \ that prior to the making of that lease she had-a personal communication with the plaintiff, Mr. Stephens; ■ that certain conditions were required if the lease was to be renewed; that they related to a reduction of the; rent and to certain repairs; that certain fixtures should be put in the basement, *205and that the defendants should have the privilege of removing the fixtures they had previously put in. The question was then asked : “Was it also agreed between you that the right to remove those fixtures should continue until you quit the premises ? ” That was objected to, no ground of objection being stated, but it is plain that the objection was only as to the form of the question, involving as it did the conclusion of the witness. That is evident from what the court, said, which was: “ Let her state what took place.” There was no objection as to the competency of the evidence nor as to the right of the defendants to give testimony as to the parol contract made as the condition of the written lease; but evidently the objection and the exception applied only to the form of the question, the evidence being offered manifestly to sustain the allegation of the amendment to the answer consented to by the plaintiff’s counsel. The witness then testified that .Mr. Stephens stated that he was willing to have the fixtures removed, and thereupon the renewal lease seems to' have been executed. All this testimony came in without objection, and that that was so also appears in a subsequent part of the record. The court asked of this same witness the question: “How many conversations did yon have .with the plaintiff with reference to the removal of fixtures?” Then the counsel for the plaintiff for the first time stated that in his judgment it was immaterial and improper in view of the fact that all the agreement appeared to be in writing. The court then referred to the record to ascertain whether or not questions that had been previously put to the witness respecting conversations with the plaintiff regarding the right to remove fixtures, were allowed without objection ; and the record then recites that the stenographer read the testimony referred to, and there having been no objection to this line of testimony the objection is overruled. Thus it appears, distinctly that the evidence of this parol contract was admitted without objection. There was no motion made to strike out the testimony, the plaintiff’s counsel contenting himself with taking an exception to further examination of the witness upon that subject. We must take up the case, therefore, as we find it on this testimony, and as the plaintiff’s counsel evidently considered its situation to be at a later stage of the trial.
The court charged the jury that it was for them to decide what *206fixtures were removed by the defendants, and, after they had ■determined that, to decide whether or not there was an oral agreement-between the parties litigant, as claimed by the defendants, viz., that the fixtures might be removed by them after the expiration of their term in the demised premises. No exception was taken. On the contrary, the plaintiff’s counsel requested the .eourt to charge that the fixtures, admitted to have been removed by the defendants, were of such a character as to be affixed to the. premises, and such as could not have been removed without an express agreement to that effect, and the court so charged. He also requested that the jury be instructed that unless they should find that, at the time of the making of the second lease of -March, 1889, there was also an agreemént made by which the defendants-were to be permitted to remove the fixtures in question, then they should find for the plaintiff for the amount which they should determine The fixtures removed were reasonably worth under the evidence, together with the cost of replacing the -same. That the court also •charged. So that the case was treated as if the evidence were properly before the jury, with respect to the parol arrangement, .recognizing the right of the defendants to remove the fixtures. ’These requests would not have prevented the plaintiff from insisting upon.the validity of an objection to the competency of the testimony with respect to the parol arrangement, had such objection been made in time, but as it appears that, it was not so made, and that substantially all that was necessary to establish that parol .agreement was in the case before any objection was made, and was thus before the jury, the plaintiff cannot now avail himself of the ■contention that there was error in allowing the case to go to the jury upon that evidence as to the parol agreement.
There are no errors in the charge nor in the rulings during the trial that call for a reversal of the judgment, and it must he affirmed, with costs.
Ingraham, J., concurred; Van Brunt, P. J., and Williams, J., ■dissented.