I concur with Mr. justice Patterson that this judgment should "be affirmed. The defendants, being the tenants of a house leased by *207the plaintiff, removed, before the expiration of the lease under which they held, certain articles which they had placed in the house during their tenancy, and the plaintiff sues to recover the value of these articles, upon the ground that they were fixtures annexed to the freehold. The first question to be determined is whether or not the articles ever became annexed to the freehold so as to become fixtures. It appears that, after the defendants had first leased the house from the plaintiff, it was used with the knowledge of the plaintiff for a school, and that in consequence of there having been some sickness in the school, which required its temporary discontinuance, it became necessary to put the building in a perfect sanitary condition, which required new plumbing. This having been explained to the plaintiff, there was evidence to justify a finding by the jury that the plaintiff agreed that the new fixtures placed in the building by the defendants should not become fixtures, but could be removed by the defendants at the end of the demised term. Under this agreement it is quite clear that these articles, during the continuance of that term, did not become a part' of the freehold, but remained subject to the right of the defendants to sever them from the building, and thus, at any time prior to the termination of that term, the defendants had the right to remove such articles as they had placed in the building. When their lease was about to expire they applied to the plaintiff for a renewal of the lease. Before the renewal lease was executed, it was agreed that this arrangement as to the right to remove these articles should continue, and that the defendants should have the right to remove them at any time before the expiration of the new lease ; in other words, that the articles themselves (which had not become annexed to the freehold, because of the agreement between the parties, that the defendants should have the right to remove them at any time before the expiration of the demised term) should, during the continuance of the term demised by the new lease^ retain the same relation to the building, but should he removed by the defendants at any time before the end of the new term. This agreement, as to the relation that these particular articles bore to the premises, was not a part of the new lease. What the plaintiff - leased, to the defendants was his building upon his property. These articles had never become his. By the agreement between the parties under *208which these articles had' been placed in the house, they were to remain the property of the .defendants, who owned them and had placed them in the house. They thus'¡never became the property of the plaintiff, and, as he had agreed that such articles should continue to belong to the' defendants, it was not necessary that any provision in regard to them should be inserted in the lease, which related only to his house and- its necessary appurtenances.
The underlying principle always applied in determining whether or not an article affixed' to a building does or does not become a fixture annexed-to the freehold, is-one; :of intention as between the party annexing it and the owner of the freehold. Where nothing appéars from which the intention of the parties can be determined except the act ef annexation, then the question of intention is determined from .the character of the article itself, the use' to which it is
■ put and thé nature of the means used to annex it. Where, however, the intention can be ascertained from the declarations or agreements of the parties prior to, or at the time " of, annexation, then such declarations or agreements • control. Where it clearly appears that,' ■ prior to the time that the articles were placed in the building, the parties had expressly agreed that the articles should not become fixtures, but should remain the property ,pf the person placing them within the building, and could be removed by such person during the- existence of the demised term, then this agreement is controlling that the articles never, do become fixtures, but remain during the term the property of the tenant. The question as to whether or not ■ an article annexed to the freehold does '.or does not become a fixture, where there is no agreement between the landlord and tenant, depends (1) upon the intention of the parties as shown by the character of the article itself, the use to which it. is put and 'the manner of annexation, and (2) upon the relation that exists between the occupier of the-, premises and the owner of the fee, viz,, life tenant and remainderman, mortgagor and mortgagee, landlord and tenant. Where, however, the articles are put upon the premises under an express contract; then this contract controls. Where the right of the tenant to remove fixtures placed by him upon the premises depends, not upon an express contract, but upon the presumed intention of the parties, the right is then said to be “ a privilege conceded to him , for reasons of public policy, and may be waived by him, and will be *209regarded as abandoned by any acts inconsistent with a claim to the-buildings as distinct from the land, and, upon abandonment of the right by the tenant, .fixtures erected by him immediately become the property of the landlord as a part of the land. A surrender of the premises, after the expiration of the lease, is such an abandonment as vests the title in the landlord. In reason and principle the acceptance of a lease of the premises, including' the buildings, without any reservation of right, or mention of any claim to the buildings and fixtures, and occupation under the new letting, are equivalent to a surrender of the possession to. the landlord at the expiration of the first term. The tenant is in under a new tenancy and not under the old; and the rights which existed under the former tenancy, and which were not claimed or exercised, are abandoned as effectually as if the tenant had actually removed from the premises, and, after an interval of time, shorter or longer, had taken another lease and returned to the premises.” (Loughran v. Ross, 45 N. Y. 794.) This principle was followed in Talbot v. Cruger (151 N. Y. 120) where the court states the rule to be: “A tenant may remain in possession after the old lease has expired; but unless he reserves the right under the new lease to remove the fixtures upon the land, the right will be deemed to have been abandoned, and they will become the property of the landlord.” The court then continues: “ In this case the plaintiff claims to have become the owner of the buildings by purchase, and through an arrangement between Hyland, who had erected them, and Mrs. Field, the then owner of the land, it was agreed that they should be and remain Hyland’s personal property, and subject to his right to remove them. Assuming these facts to be true, there is the difficulty that the plaintiff did not prove that she herself made any agreement with the landowner when she became the tenant of the premises. Hyland, or the plaintiff, very possibly, may have been entitled to exercise the right of removal before the expiration of Hyland’s tenancy; but it would not necessarily follow, when the plaintiff went into possession under a lease from the landowner, that that right continued in force. It was incumbent upon her to establish that she had made some arrangement with Mrs. Field which conceded to her such interests and rights of ownership in the buildings as would authorize her to *210claim them as her distinct property, and to remove them from the land while her tenancy lasted.”
Where the question of the right to remove depends not upon the express agreement, but upon the presumed intention of the parties, the right to remove can be extended, beyond the term in existence at the time the articles were annexed, by agreement between the parties, by which that right is to continue through a new term, but in the absence of such agreement the right is lost by the acceptance of a new lease, because that acceptance is equivalent to a surrender of the premises and the taking of a new letting from the landlord; and this is deemed to be an abandonment of the right which' the law implies by such surrender and new demise. Where, however, the possession continues unbroken, and by an express agreement between the parties there is no such abandonment of the right to remove, but it is agreed that such right should continue during the new term, if is clear that the rulé stated in the cases above cited does not apply. It is not suggested in _ Talbot v. Cruger (supra) that the agreement between the tenant and the landlord must be contained in the lease itself to be effectual, and it would seem to be clear that such an. understanding or agreement is not" a part of the leasing of the premises. It may be that if the lease in express terms declared the articles which had been annexed during the prior term, to be a portion of the premises demised, then parol -evidence of prior agreements would be inadmissible as tending to contradict a written instrument, under the rule that prior negotiations aré merged in the. instrument itself when reduced to writing and signed by the parties. Thus, if a person was to erect upon a vacant lot, leased by him, a building which he claimed the right to remove after having accepted ;a new lease, which had demised the building and lot, it might be said that, the new lease haying expressly described the building as having •been demised, a prior verbal agreement between the parties, would not be competent evidence to show that the. building was not in fact •demised, but remained the property of the tenant. Where, however, the articles in dispute consist of property used in the building, not expressly described in the lease, so that, as in this .case, the question arises as to what is included within the term “ The premises known as No. 142 Columbia Heights, in the city, of Brooklyn, with the appurtenances,” it is clearly not contradicting the terms of this *211instrument to sho.w that, by express agreement of the parties, certain bath tubs in the house were not included as a part of the house leased. Thus, in the lease executed in 1887, before these articles were placed in the house, the premises- are described in exactly the same terms as are used in the lease executed'in 1889, after the articles had been placed in the house, and it certainly is not contradicting this instrument to prove that by express agreement between the parties, made prior to the execution of the latter lease, it was agreed that this description of the property leased should not be held to include these articles which the defendants themselves had placed in the house, and which they had, up to that time, the right to remove.
I think it clear, therefore, that the court below was right in holding that if this agreement between the plaintiff and the defendants, made when the articles were placed in the house, existed, and that before the new lease was executed it was expressly agreed between them that the defendants’ right to remove the articles should continue during the term of the new lease, the articles never became fixtures; that the defendants never abandoned their right to remove by the taking of the new lease from the plaintiff, and that the description in the new lease of the demised premises did not include these articles of personal property which belonged to the defendants. And the jury having found, upon evidence sufficient- to sustain their verdict, that this agreement was made when the articles were placed in the house, and that, before the new lease was given, the plaintiff agreed that the defendants should have the right to remove the articles during the new lease, it follows that the defendants had the right to remove the articles at any time before the end of the term.
The judgment should be affirmed, with costs.
O’Brien, J., concurred.