On appeal from the Hudson County Circuit Court.
For the appellant, Hershenstein, O'Brien & Tartalsky (Samuel Tartalsky, of counsel).
For the respondent, Colie & Colie (Frederic R. Colie, of counsel).
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The instant case presents an appeal from a judgment recovered by the plaintiff in an action in replevin, which was tried at the Hudson County Cirsuit. The suit was to recover a sprinkler system and fire extinguishing apparatus, installed in a brick building in Jersey City, now owned by the defendant. The equipment was not purchased by the defendant, the present owner, but was installed by the plaintiff for the D. & A. Construction Corporation under a conditional sales agreement.
The D. & A. Construction Corporation was a contracting company which erected the building for defendant's lessee, Frantella Realty Corporation. The contract price of the equipment in question was $4,500 and there remained a balance due to the plaintiff for furnishing and installing this equipment in the sum of $1,401.75.
The plaintiff did not proffer a bond to obtain immediate possession; the complaint merely demanded possession of the sprinkler system and fire extinguishing apparatus or a judgment for the sum of the unpaid balance. The court below, having tried the case without a jury, made this finding, "the statements in paragraphs 1 to 9 inclusive of the complaint are supported by the evidence. The court finds for
the plaintiff and against the defendant upon the allegations in the complaint and assesses the damages at the sum of $1,401.75."
The defendant appeals from this determination, urging that he was entitled to judgment because this equipment is so affixed to the realty that it cannot be removed without material injury to the freehold; that the plaintiff's reservation of ownership in this equipment is void under the Conditional Sales act as against him, defendant-appellant, because he did not assent thereto; and, that it was improper for the court to award a judgment for the sum of $1,401.75, which was the amount of the unpaid balance, on the contract between the plaintiff and the D. & A. Construction Corporation.
Our examination of this record convinces us that the court below did not pass upon the legal issue made by the pleadings in this case and, consequently, there must be a reversal. The court said, in his determination, that he found the allegations in the complaint supported by the evidence. Now the complaint merely alleged that a contract had been entered into between the plaintiff and the D. & A. Construction Corporation for the installation of the sprinkler system and fire apparatus at an agreed price; that the plaintiff retained the ownership of the goods until the same had been paid for in full, reserving the right of repossession; that $1,401.75 remained unpaid; that the plaintiff made demand for the return of the system and the defendant refused to deliver it. Then there was a demand for judgment. The answer, however, sets up as a separate defense that the sprinkler system could not be separated from the freehold without material damage thereto and the plaintiff joined issue thereon in reply.
Now the building in question is three stories high with a basement; is occupied by stores on the first floor and offices above and is constructed of brick. The sprinkler system runs through the entire building. The building regulations of the municipality do not permit the erection of buildings of this type unless a sprinkler system and ...