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Domestic Electric Co. v. Mezzaluna

Decided: October 17, 1932.

DOMESTIC ELECTRIC COMPANY, INCORPORATED, APPELLANT,
v.
ALFRED MEZZALUNA, RESPONDENT



On appeal from the Essex County Circuit Court.

For the appellant, Green & Green.

For the respondent, Azzoli & Krasney.

Lloyd

The opinion of the court was delivered by

LLOYD, J. The action in this case was in replevin to recover certain portions of Frigidaire equipment sold to Corrado & Maturi under a conditional sales contract and which had been placed in an apartment house being constructed by the purchasers for the defendant, the replevin applying to the refrigerators, coils, compressors and cabinets and omitting certain equipment incident thereto, this latter admittedly forming an integral part of the building. The case was heard on a stipulation of facts and an opinion was filed together with findings of fact on which judgment in favor of the defendant was entered in the trial court and from which judgment the present appeal is taken by the plaintiff.

The defendant below, the owner of property in Irvington, contracted with Corrado & Maturi for the construction of a forty-family apartment house. This contract was filed of record and among its provisions was one calling for the installation of a Frigidaire system, to be built in the apartment house. The contractor on March 21st, 1928, entered into an agreement with the Domestic Electric Company, plaintiff below, to build in and install this Frigidaire system, receiving the bill of sale for the units of the equipment. Installation under the agreement began at once.

The building was completed and the owner paid the contractor the contract price, including the cost of the Frigidaire

system. The Domestic Electric Company, however, never received payment from the contractor, and the building contract having been placed of record, no claim could be filed under the Mechanics' Lien act. The contract between the builder and the appellant provided that the equipment should be and remain the property of the appellant until paid for.

Contending that he is protected by the Uniform Conditional Sales act of 1919 (Pamph. L., p. 461), reliance is placed by appellant on section 7 of that act. This section reads as follows:

"If the goods are so affixed to realty, at the time of a conditional sale or subsequently as to become a part thereof and not to be severable wholly or in any portion without material injury to the freehold, the reservation of property as to any portion not so severable shall be void after the goods are so affixed, as against any person who has not expressly assented to the reservation. If the goods are so affixed to realty at the time of a conditional sale or subsequently as to become part thereof, but to be severable without material injury to the freehold, the reservation of property shall be void after the goods are so affixed as against subsequent purchasers of the realty for value, and without notice of the conditional seller's title, unless the conditional sale contract or a copy thereof, together with a statement signed by the seller briefly describing the realty and stating that the goods are or are to be affixed thereto, shall be filed before such purchase in the office where a deed of the realty would be recorded or registered to affect such realty. As against the owner of realty the reservation of the property in goods by a conditional seller shall be void when such goods are to be so affixed to the realty as to become part thereof, but to be severable without material injury to the freehold, unless the conditional sale contract, or a copy thereof, together with a statement signed by the seller briefly describing the realty and stating that the goods are to be affixed thereto, shall be filed before they are affixed, in the office where a deed would be recorded or registered to affect such realty."

So much of the section as is intended to protect purchasers has no application to the present case, but it is obvious that the respondent owner comes within the purview of its other provisions.

The contract between the builder and appellant called for the placing of risers or pipes running through the walls of the building, two compressors in the cellar, each for sixteen apartments, and ice boxes in the individual apartments. This contract was filed in the office of the register of Essex county on April 5th and was recorded by the clerk in the mortgage book instead of in the conditional sales ...


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