Goldmann, Foley and Kilkenny. The opinion of the court was delivered by Foley, J.A.D.
Plaintiff brought a replevin action in the Law Division for possession of a number of items of equipment used in the operation of a retail butcher business. The trial court determined that certain of the articles were personalty, and gave judgment for plaintiff thereon. Others were found to be fixtures, title to which passed with the realty. As to these, judgment was entered in favor of the defendants. Defendants appeal; plaintiff does not cross-appeal.
The essential facts are not in dispute.
One, Guy Matthies, now deceased, was the owner of a two-story building at 33 Ridge Road, Lyndhurst, N.J. For some 25 years he operated a butcher shop on the first floor, the second floor being used for residence purposes. The building is one of a row; all are similar in size and general appearance; on the first floor of each, small neighborhood retail businesses are conducted.
The items in question were originally acquired by Matthies in 1950 under a conditional bill of sale. In 1952 Matthies obtained a loan of $7,500 from the Rutherford National Bank and gave a chattel mortgage on the items as security. The loan was paid off in August 1955. In October 1953
Matthies gave a first mortgage on the realty to Pulaski Savings and Loan Association in the approximate amount of $11,000. In November 1958, he and Eileen Matthies, whom he had meantime married, gave a second mortgage on the realty to defendants Harry and Gladys Nyman for approximately $13,000. In December 1958 Pulaski foreclosed its mortgage. The property was bought in by Harry Nyman at the Sheriff's sale on May 18, 1959.
On May 8, 1959 plaintiff purchased the items in question from Matthies for $1,150, and in June 1959 he made a formal demand for possession of them. The demand was refused, and the present action followed. Frank Lupo was joined, as lessee of Nyman, in actual possession of the equipment.
The articles at issue are listed below. We note briefly in parentheses the degree of the annexation (or lack thereof) of each to the freehold, and the effect of the removal of them upon the physical appearance and condition of the property, all as stipulated by counsel on the oral argument.
2 sections-29' gondolas (rests on floor surrounded by Kentile, removal would leave untiled area)
1 12' three-tier shelving (removable without damage)
1 U-shaped checkout booth (removable without damage)
9 refrigerator compressors (removable without damage)
1 Jim Vaughan electric saw (bolted to floor ...