(dissenting):
I dissent. ~is court in this department decided that gas ranges placed in apartment houses in. practically, if not precisely, the 1~ame way in which the ranges in question were placed re~'ained their character as chattels as matter of law. (Cosgrove v. Troescher, 62 App. Div. 123.) The statute, sectiOn 67of the Personal Property Law (Consol. Laws, chap. 41; Laws of 1909, chap. 45), did ndt in terms or effect change the rule of law declared in that case. Indeed, it only indirectly mftolved the law of fixtures. Its plain purpose was to prod t?ct bona fide. purchasers, pledgees or mortgagees of chattels ~ulject to contracts of conditional sale. In its original form (Lien Law [Gen. Laws, chap. 49; Laws of 1897, chap. 418], § 112) it applied only to purchasers, pledgees or mortgagees of chattels as such. But' it was amended .in 1904 (Laws of 1904, chap. 698, § 1) so as to protect purchasers or incumbrancers of premises having thereon a building containing fixtures. The *790provision, added by the said amendment, can have no application to the case of chattels which from their nature remain such, though attached to a building, as these ranges were attached, for the reason .that the purchaser of the real property would get no title to them, even as against his vendor. The said provision was doubtless intended to apply to the class of cases in which the intention of the party attaching the chattel determines whether it retains its character as such; e. g., Fitzgibbons Boiler Co. v. Manhasset Realty Corp. (198 N. Y. 517). We cannot hold that this case falls within that class without overruling Cosgrove v. Troescher (supra).
Laughlin, J., concurred.
Judgment affirmed, with costs.