On appeal from the Hudson County Circuit Court.
For the defendant-appellant, Hershenstein, O'Brien & Tartalsky.
For the plaintiff-respondent, Colie & Colie.
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment entered in favor of the plaintiff upon a verdict by a jury in a trial before the Hudson County Circuit Court.
The action was in replevin to recover an automatic wet pipe sprinkler system and fire extinguishing apparatus (hereinafter spoken of as sprinkler system) installed by the plaintiff in a three-story brick business and office building in Jersey City.
The defendant was the owner of the premises and on February 26th, 1929, he leased the same to the Frantella Realty Corporation for a term of fifty years.
The lease was recorded. It provided that the lessee should raze the buildings and erect a commercial building upon the demised premises "conforming to the local building code." The lessee agreed to comply with all ordinances and regulations of the city, or other public authority. It was further provided that the building and all improvements made by the lessee were to become the property of the lessor and that all improvements with all fixtures were to remain upon and be surrendered with said premises as a part thereof at the termination of the lease; and that the lessor should not be liable for any materials furnished and that no lien for work performed or materials furnished to the lessee upon credit should attach to or affect the reversionary or other estate or rights of the lessor.
The Frantella Realty Corporation thereupon entered into an agreement with the D. & A. Construction Corporation, dated July 15th, 1929, for the erection of the new building, which agreement, together with the plans and specifications, were duly filed in the Hudson county register's office on July 24th, 1929, whereby the contractor agreed to complete the new building according to the plans of the architect and to comply with all municipal rules, regulations and orders affecting the premises.
On November 23d, 1929, the plaintiff entered into a conditional sales agreement, duly recorded, with the D. & A. Construction Corporation, for the installation of the sprinkler system, whereby the equipment should be and remain the property of the plaintiff until paid for.
The building code of Jersey City provided that a corner building of this kind could not cover more than six thousand square feet but if the building was completely equipped with
a system of automatic sprinklers, this area could be increased fifty per centum. The building in question covered an area of approximately eight thousand three hundred square feet, and therefore a sprinkler system was required, and under the ordinance of Jersey City the building could not be used for any purpose without it.
There was testimony indicating that the system was removable by unscrewing the sprinkler heads from the stringers and the fittings holding the stringer pipe and unscrewing the hangers from the joists. The removal would leave in the building about eight hundred holes of various sizes. There was evidence by experts that the system could be removed without material injury to the freehold, and that the plaintiff tendered itself ready at its own expense to repair whatever damage was done to the building in the removal.
The sprinkler system was not paid for in full by the D. & A. Construction Corporation, although the corporation itself was paid the full price of its contract.
The Frantella Realty Corporation defaulted in the payment of its rent and the lease was terminated by dispossess proceedings and the defendant became revested with the possession of the property and plaintiff demanded possession of the sprinkler system and apparatus, which was refused. The present suit was thereupon brought and there was a stipulation as to the amount of damages in the event that the verdict was in favor of the plaintiff, and judgment was entered for this amount.
The first point argued by appellant for reversal is that the court should have directed a verdict for the defendant because from the evidence it was established as a matter of law that the sprinkler system was so affixed to the realty that it was a part thereof and was not severable wholly or in any portion without material injury to the freehold.
The appellant bases his motion upon the Uniform Conditional Sales act (Pamph. L. 1919, ch. 210), and three cases decided by this court construing said act, to wit, Domestic Electric Co. v. Mezzaluna, 109 N.J.L. 574; MacLeod v. Satterthwait, 109 N.J. Eq. 414; affirmed, 113 Id. 238; Russ Distributing Corp. v. Lichtman, 111 N.J.L. 21. All of
these cases deal with the right of the conditional vendor to remove a refrigerating system from an apartment house.
The right to remove such apparatus is controlled by section 7 of the said Uniform Conditional Sales act (Pamph. L. 1919, p. 462), the pertinent paragraphs of which read 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. * * *"
"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."
The defendant did not expressly assent to the reservation of property in plaintiff, but plaintiff insists that since he has followed the statutory mandate as to filing, the right to remove is made solely dependent upon whether or not the ...