(dissenting.) The action was for damage to the freehold by the removal from the plaintiff’s lot of a portion of a small barn which stood thereon. In March, 1884, the defendant Mrs. Bobie Clough became the owner, by warranty deed, of a lot of land four rods wide, situate on the east side of Morris street, in the city of Auburn, on which stood the barn in question adjacent to the north line of the lot. The deed was recorded soon after it was delivered. In April of the same year Mrs. Clough conveyed, by warranty deed, to her daughter, Mrs. Gilbert, the same premises, excepting and reserving therefrom a strip of land six feet wide along the north line of the lot, Mrs. Clough being then and now the owner and occupant of the lot next north of the strip reserved. The reservation included about one-third of the barn. The deed to Mrs. Gilbert was recorded within a few days after its date. In November, 1888, the plaintiff became the owner, by several mesne conveyances, of the premises so conveyed to Mrs. Gilbert. No one of *342such conveyances contained any reservation or exception; all contained covenants of warranty, and were duly recorded. On the trial of this action evidence was received, under objection and exception by the plaintiff, to show that, after the execution and delivery of the deed to Mrs. Gilbert, she attempted to make an oral gift of the barn to her father and mother, declaring to them “that now the barn was theirs; that nobody could interfere with them in their right; that they had full permission to have it as theirs.” Evidence was also received, under similar objection and exception, to show that the subsequent grantees of the lot, including the plaintiff, were informed at the time of their several purchases that no part of the barn went with the lot, but that the whole of it belonged to the Cloughs. This evidence, so far as it related to the plaintiff, was contradicted. In April, 1889, the defendants, without the knowledge or consent of the plaintiff, removed the barn wholly onto the lot of Mrs. Clough, and the plaintiff brought this action to recover the diminution in value of his lot by reason of such removal. The questions arising on this motion for a new trial are presented by the plaintiff’s exceptions to the admission of evidence on the part of the defendants for the purpose of establishing an oral transfer of the barn to themselves, and an oral reservation of the same at the time of the sale to subsequent purchasers, including the plaintiff, as well as by his exceptions to the charge of the court to the effect that it was competent for the parties to the several deeds to fix the character of the barn as personal property, and to transfer or reserve it by word of mouth. I think the exceptions were well taken, and are fatal to the verdict. The case is not one in which personal property was annexed to the freehold, and in which the intention of the parties at the time of making the annexation is a test of the character of the property after that time. Such were the cases of Voorhees v. McGinnis, 48 N. Y. 278, and Tifft v. Horton, 53 N. Y. 377. In this case the barn was never personal property, but part of the freehold from the beginning. It was not built by a tenant for the purposes of his tenancy, with the agreement that it might be removed at the end of the term, but by the owner of the soil, as an addition to the usefulness and value of the lot; and it was from the moment of its erection as much a part of the freehold as the soil itself. The same answer must be made • to the contention that the case was, within the doctrine of Tyson v. Post, 108 N. Y. 217, 15 N. E. Rep. 316, one in which the character of personalty might be reimpressed upon the property by paroi agreement, after it had been once annexed, to the freehold as fixtures, the answer, namely, that this building had never possessed the character of personalty, but was always a part of the realty, and could never cease to be so until actually severed from the freehold. The case of Mott v. Palmer, 1 N. Y. 564, which is cited by the defendants on this branch of the case, seems not to support their contention. That was an action on a covenant of seisin, and related to a quantity of rails which had been placed on the land by a tenant, and erected into a fence by him, under an agreement that he might remove them at the end of his term. The action was sustained by the court of appeals, which, of course, could have been the result only on the theory that the fence was, as between the grantor and grantee, a part of the freehold, and thus embraced in the covenant of seisin; and such it was held to be, although as between the owner of the soil and the tenant it was personal property, and belonged to the latter. In the present case there can be no question but that the portion of the barn which stood on the lot conveyed by Mrs. Clough to Mrs. Gilbert was, at the time of such conveyance, a part of the realty, and, as such, passed to the grantee in the deed, both as between themselves and as to all the world. The defendants concede so much when they plant their defense upon the theory of a gift and transfer of that portion of the property from Mrs. Gilbert to her parents. So that,, really, the only question is, could such a transfer be effectuated by an oral agreement? Certainly *343not, unless there is something to deprive the statute of frauds of application to this case, which declares that “no estate or interest in lands * * * shall hereafter be created, granted, assigned, surrendered, or declared, unless by a deed or conveyance in writing.” The term “lands” in the statute is employed, in its widest sense, to embrace everything that belongs to the soil, and forms a part of the freehold. Undoubtedly it is competent for the owner of the lands to agree orally to sell or give away a building to be removed from the premises, and so give title to the building when once it should be removed; but it will not be contended that the purchaser could enforce specific performance of such a contract. I know of nothing in this case to take it out of the statute of frauds, and am of the opinion that the rulings of the court, admitting evidence of the attempted oral gift of the barn, and the charge of the court relating to the effect of such evidence, were error for which the motion for a new trial should be granted.