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Russ Distributing Corp. v. Lichtman

Decided: May 25, 1933.

RUSS DISTRIBUTING CORPORATION, PLAINTIFF-RESPONDENT,
v.
BERTHA LICHTMAN, DEFENDANT-APPELLANT



On appeal from the Essex County Circuit Court.

For the appellant, Joseph J. Corn.

For the respondent, Fred G. Stickel, Jr.

Campbell

The opinion of the court was delivered by

CAMPBELL, CHANCELLOR. The Bishop Electric Refrigeration Company entered into a conditional sale contract June 19th, 1928, with one Max Rosenberg, to furnish and install a refrigerating system in an apartment house known as 109 Johnson avenue, Newark. Title to the premises was, at the time, in the Dorma Construction Company, and appellant was the holder of a mortgage covering the land and building and which antedated the conditional sale contract. Just what position or relation, if any, Rosenberg occupied toward the premises does not definitely appear although it is said he represented himself as being the owner thereof to the refrigeration company.

Under the before referred to contract there was installed in the building a refrigerating plant consisting of three compressors located in the basement. These were connected up by pipes or risers carried up through the floors and connecting

with thirty-five coils contained in thirty-five cabinets, one in each apartment. The total contract was $5,250 upon which a single payment of $500 was made. This contract appears to have subsequently become the property of the respondent. On January 16th, 1931, a proceeding in replevin was instituted by the respondent, and under the writ, the compressors, and all the cabinets and coils were removed from the premises, so that nothing of the refrigerating system remained therein except the risers before referred to.

In the meantime and on November 9th, 1929, appellant had become the owner of the premises by purchase at a sale under proceedings for the foreclosure of her mortgage before referred to.

The conditional sale agreement was filed in the office of the register of deeds of Essex county on November 2d, 1928. The appellant had no notice of the conditional sale contract and did not assent to the reservation of property in the vendor.

The trial court at the conclusion of the trial of the action in replevin directed a verdict in favor of the plaintiff-respondent upon the ground that in removing the parts of the system "all they had to do was uncouple the coupling and take the units out and that there was no material damage to the freehold or actual injury by the removal. They did not injure it in any way."

The uncontradicted proof was that the compressors stood on the cellar floor and were coupled up to the tubing or pipes which ran to the several apartments and there were coupled to the cooling units in each cabinet which latter stood on ...


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