The defendants were the owners of a lot of land situated in the city of Auburn, about 4 rods in width, upon which there stood a frame barn 16 feet in width, and 24 feet in length. It was a small structure built upon stones sunk in the ground. It was not attached to the stones or the ground, and the evidence tended to show that it was so built that it could be removed without injuring the soil or disturbing the foundations upon which tt rested. Soon after Mrs. Robie Clough became the owner of this land she deeded to her daughter, Mrs. Gilbert, a portion of the lot, which conveyance included two-thirds of the barn. The grantor, Mrs. Clough, testified that at the time of the execution of the deed to her daughter, and after its delivery, the grantee stated: “Row, pa and ma, the barn is yours; there can nobody interfere. ” The grantee, Mrs. Gilbert, on this subject testified that on the same occasion she received the deed, she told her father and mother that the barn was theirs. After that-the grantors occupied the barn, and each grantee from Mrs. Gilbert had notice before they took a conveyance that the barn belonged to the defendants. In the case of the plaintiff, the evidence as to whether he received such notice was conflicting, but the jury found in favor of the defendants’ contention. It does not distinctly appear, nor is the point material, whether the original grantors and the grantee had an understanding or agreement, before the execution and delivery of the warranty deed, that the barn should remain the property of the grantors; but it does appear that immediately after its execution and delivery, and on the same occasion, the grantee stated to the grantors that the barn was theirs, which would naturally imply that there was either an express or implied understanding before the execution of the deed that such should be the case. The plaintiff’s contention is that the barn was a part of the real estate, and that it passed by the deed. This undoubtedly would be so, in the absence of facts showing a different understanding or agreement. In Ford v. Cobb, 20 N. Y., on page 348, the court say: “It will readily be conceded that the ordinary distinction between real estate and chattels exists in the nature of the subject, and cannot, in general, be changed by the convention of the parties. Thus it would not be competent for parties to create a.personal chattel interest in a part of the separate bricks, beams, or other materials of which the walls of a house were composed. * * * But it is otherwise with things which, being originally personal in their nature, are attached to the realty in such a manner that they may be detached without being destroyed or materially injured, and without the destruction of, or material injury to, the things real with which they are connected; though their connection with the land or other real estate is such that, in the absence of an agreement or of any special relation between the parties in interest, they would be a part of the real estate.” On page 349 the court say: “If the subject which would otherwise be real estate can be made personal by the creation of special relations between the. parties, it is clear that the same parties may effect the same thing by express agreement.” In Tyson v. Post, 108 N. Y. 217-221, 15 N. E. Rep. 316, the court say: “There can be little doubt, however, that the machinery, shafting, rollers, and other articles became, as between vendor and vendee, and mortgagor and mortgagee, fixtures, and a part of the realty. ” Citing McRea v. Bank, 66 N. Y. 489. “But as by agreement, for the purpose of protecting" the rights of vendors of personalty, or of "creditors, chattels may retain their character as chattels, notwithstanding their annexation to the land in such a way as, in the absence of an agreement, would constitute them fixtures, [citing Ford v. Cobb, supra, and Sisson v. Hibbard, 75 N. Y. 542,] so, also, it *341would seem to follow that, by convention, the owner of land may reimpress the character of personalty on chattels which, by annexation to the land, have become fixtures according'to the ordinary rule of law: provided, only, that they have not been so incorporated as to lose their indentity, and the reconversion does not interfere with the rights of creditors or third persons.” The materials out of which this barn was constructed were originally personal property, and the barn erected in the form it was might remain such if originally so intended. Voorhees v. McGinnis, 48 N. Y. 278, and the cases above cited; Kinsey v. Bailey, 9 Hun, 452. In Batterman v. Albright, 122 N. Y. 484-490, 25 N. E. Rep. 856, the court say: “And, if the right of the plaintiff in the present case had been acquired to the trees prior to the mortgage, a different question would have been presented. In that event, the sale upon the execution and purchase by the plaintiff may have, so far as essential, been treated as a severance of the growing trees from the realty.” In the case at bar it could never have been intended by the grantor or grantee that the barn should be occupied in common. A joint ownership would be useless to either party. Confusion might have been avoided by a reservation in the deed. But it was competent for the parties to treat the barn as personal property. It was so regarded between the original grantor and grantee. The defendants occupied and exercised dominion over the barn after their deed. The plaintiff, as the jury found, had notice that the barn after the deed waS personal property, with the right on the part of the original grantors to remove it. Every subsequent grantee, including the plaintiff, had notice of that fact. The plaintiff’s right was acquired after the agreement or arrangement to treat the barn as personal property,' and he, therefore, occupies the position stated in the quotation from 122 N. Y., and 25 N. E. Rep. This barn, in view of its mode of construction, was in its own nature capable of being treated as personal property, and was not, within the exception stated in the 20 N. Y., incapable of being retained or changed into personal property. The judge in the Tyson Case, above cited, states, in substance, that, although the barn was real estate, it could by agreement be reimpressed with the character of personal property. Such was the arrangement and intention in the case at bar, of which the plaintiff had full notice before he took his deed. The submission of the case to the jury by the trial justice was correct, and their findings, under the instructions given, correct. Alleged errors in the admission or rejection of evidence are entirely immaterial, as the questions involved in them would only become important in case the plaintiff was entitled to recover. The same is true as to the time of removal; it was entirely immaterial whether it was removed by night or day. The motion for a new trial should be denied.