In Tifft v. Horton (53 N. Y., 377), it is said, in accordance .with a long series of adjudged cases, that chattels may be annexed to real estate, and still retain their character as personal property, and that the intention, with which they are annexed, is one of the circumstances by which to determine their character.
In the case cited there was a written contract between Mrs. Brown, who owned the elevator in Buffalo, and the plaintiffs, by which the latter agreed to manufacture an engine and boiler, and other machinery and to put them up in said elevator, all of which was to be paid for by two notes made by Mrs. B., to be secured by a mortgage on the machinery, to be given as soon as it was completed and ready to be put up. The mortgage was given while the boiler, etc., were still in the shop. It was provided in the mortgage that the engine, etc., should be and remain personal property until the notes were paid, notwithstanding the manner in which they should be put up in the elevator. There was a recital in the mortgage that the engine, etc., were made to be put up in the elevator, and in case of breach, it authorized the mortgagee to enter and take it away.
A note become due, and not being paid, the plaintiffs demanded the property of the defendants, who were in possession, but they refused to deliver it.
The engine, etc., were not put into the elevator building, but *455into a small building adjoining, called the engine-bouse which was erected over them after they were set up.
The defendants claim to own the property as purchasers, under three mortgages which were liens on the elevator premises.
There was in the case a clear manifestation of an intention on the part of Mrs. Brown and the plaintiffs, that the engine, etc., should not become part of the realty, although it might be permanently affixed thereto. And this exemption was held to be valid against the mortgagee in the three mortgages under which defendants derived their title.
In this ease it was in proof, by the son of one of the plaintiffs, that when Converse applied to them for money to aid him in putting steam power into his mill, his father, one of the plaintiffs, declined to do any thing about it until he could.take counsel, and see if the machinery, etc., to be purchased, would remain personal property. Converse said the property in chattel mortgages would remain personal property. This was before any mortgages were executed. On cross-examination the witness testified that his father said he knew if the property was attached to the mill, it might pass as real estate. Converse claimed to know that it would remain personal.
It would seem then, that the advance was made specifically for the purchase of machinery to be put into the mill, and under the assurance of the owner of the mill that the property so purchased should remain personal after its annexation to the building.
This is surely some evidence of the intention of the parties to that arrangement, that the machinery should remain personal property, although it might be annexed to the mill.
To this is to be added the evidence to be derived from the two chattel mortgages.
If putting the machinery into the mill, as such machinery is usually annexed to the building in which it is to be used, rendered it real estate, the mortgages were a mere nullity, except so far as they might contain covenants or promises to pay the amounts mentioned therein. Such a result was not contemplated or intended by either party. These mortgages were, I respectfully submit, a clear manifestation and declaration of an intention to make the machinery, etc., personal property, after it was annexed to the building.
*456Tbe intention was not as strongly expressed as in tbe case of Tifft v. Horton, but it was done in part by an instrument of tbe same character and of the same legal force and effect.
The contract expressed tbe intention more emphatically, but with no more legal force or effect than is done by tbe chattel mortgages.
It was said in Voorhees v. McGinnis (48 N. Y., 278), that giving a mortgage on chattels which are subsequently annexed to the realty, the chattels become a part of it, and cannot be taken by the mortgagee by virtue of the mortgage.
The case of Tifft v. Horton, if it does not overrule this proposition, so far qualifies it that there is practically nothing left of it.
If the intention of the parties to the agreement that personal property shall retain its character as such, notwithstanding it is annexed to the realty, is to determine its character, it cannot be material how that intention is manifested, so that it is clearly established. It may as well be done in a chattel mortgage, or in conversation, as in any other way.
Although, as between those parties the question is not material whether the engine, 'etc., bought of Drullard & Hayes, was or was not personal property after they were affixed to the mill, yet this property clearly remained personal within the case of Tifft v. Horton, and it being personal it is a circumstance to show that it was Converse’s intention, to consent that all the personal property obtained on credit should retain its character of personal after it was affixed to the building.
I am, therefore, of the opinion that the referee erred in refusing to find the facts as requested by the plaintiff’s counsel, and that he erred in holding that the property described in the complaint became part of the realty after it was annexed to the same, and hence the plaintiffs’ complaint was erroneously dismissed.
The judgment is reversed and a new trial ordered before another referee, costs to abide event.
Present — MulliN, P. J., Smith and Taloott, JJ. .Ordered accordingly.