Thé defendant claims the fixtures in dispute, as a part of the realty of the premises in which they were placed, and that they were included in the judgment of foreclosure ordered on March 27th, 1871.
At that time the fixtures were not- upon the premises. They were not placed there until January, 1876, at which time a chattel mortgage upon them was duly executed to the plaintiff to secure the sum of $3000. Thus a clear intention was expressed to treat them as personal property within the decision of Ford v. Cobb (20 N. Y. 344), and not as a permanent accession to the freehold, within the rulings of Voorhees v. McGinnis (48 N. Y. 278) and Grosz v. Jackson .(6 .Daly 463).
In McRea v. The Central National Bank of Troy (66 N. • Y. 489) the question here involved was elaborately discussed, former adjudications cited and distinguished, and the criterion of a fixture was decided to rest upon the union of three requisites: 1st. Actual annexation-to the realty or something appurtenant thereto; 2d. Application to the use or purpose to which that part of the realty to which it is-connected is appropriated; 3d. The intention of the party making the annexation to make a permanent accession to. the freehold. See, also The Globe Marble Mills Co. v. Quinn (76 N. Y. 23).
It needs no argument to show that a claim of title in 1871, when the fixtures were not upon the realty, should not supersede the specific lien of a chattel mortgage created' nearly five years thereafter.
The questions of demand and refusal were properly submitted to the jury.
The judgment should be affirmed, with costs.
Charles P. Daly, Ch. J., and J. F. Daly, J., concurred.
Judgment and order affirmed, with costs.