Opinion
October, 1922. Received November, 1922.
Jacob Goodman, for purchaser.
Furst, Schwartz Schwager, for defendant Burchard.
This is a motion by the purchaser of a house and lot at foreclosure sale, to restrain the defendant Burchard, tenant in possession, from removing from the mortgaged premises certain electric light and plumbing fixtures, parquet and partitions. A writ of assistance has heretofore issued against said tenant, at the instance of the purchaser, but execution thereof is held in abeyance pending disposition of this application. The purchaser submits affidavits showing a threatened removal by the tenant of the fixtures above mentioned. The tenant seeks to justify the contemplated disposition upon the ground that the fixtures were installed by him during the period of his occupancy, and are still personal property, title to which is retained by him. As a preliminary objection the tenant urges that the court is without jurisdiction to grant injunctive relief, for the reason that the suit has wholly terminated. There is no doubt as to the jurisdiction of the County Court to grant injunctive relief as an incident to mortgage foreclosure. Civ. Prac. Act, §§ 67, 69; Ertrachter v. Locust Building Co., 102 Misc. 368; Mead v. Langford, 56 Hun, 279. I am of opinion that the jurisdiction of the court continues after entry of the confirmatory order, as to all matters connected with putting the purchaser into possession. That power is not limited to the mere issuance and execution of a writ of assistance. It extends to incidental injunctive relief, the purpose of which is to prevent nullification of the writ by demolition, removal or other form of waste, in connection with the improvements on the mortgaged property. The tenant also, but not as a preliminary objection, denies jurisdiction, upon the ground that he was not served, and has never appeared, in the foreclosure suit. It would be unwise to permit the proofs of service contained in the judgment roll to be collaterally impeached in this manner. The tenant has never moved to set aside the alleged service upon him, but on the contrary has submitted to an arrangement under which he has paid rent to a receiver in the foreclosure suit. Nor has he contested the issuance of, or moved to vacate, the writ of assistance. He is clearly under the jurisdiction of the court in this application, and subject to such relief as it is within the jurisdictional power of the court to grant. The tenant contended that the fixtures which he seeks to remove from the premises are such as retain their characteristics as personal property during continuation of a tenancy, when installed by a tenant. McKeage v. Hanover Fire Insurance Co., 81 N.Y. 38; Wahle-Phillips Co. v. Fitzgerald, 225 id. 137; Century Holding Co. v. Pathe Exchange, Inc., 200 A.D. 62; DeBevoise v. Maple Ave. Const. Co., 228 N.Y. 496. The purchaser contends that they constitute a part of the freehold, particularly as most of the fixtures were installed following an agreement made between mortgagor and mortgagee at the time the mortgage loan was obtained, under the terms of which the mortgagor agreed to install electric fixtures, plumbing and hardwood floors. Said agreement was in writing, and was signed by the tenant as attorney for the mortgagor. It has a direct bearing upon the intent of the tenant in subsequently installing the articles which he now seeks to remove and retain. There is no arbitrary standard whereby to determine, in all cases, what fixtures become realty and what retain their character as personalty. Each case depends upon its own facts. The question is largely one of intent, and may turn upon any one or more of a variety of circumstances so extensive as to defy legal circumscription. It would be unfair to the disputants, and inimical to the safeguards which surround property rights, to determine the merits of the question here presented, on affidavits alone and without an opportunity for the cross-examination of witnesses. To thrust an adjudication upon the tenant under such circumstances would be to deprive him of possession and of the right to a determination, by due process of law, upon a trial of the issue. The rights of the purchaser, on the other hand, would be similarly impaired by an adjudication in favor of the tenant. A fair disposition of the present application would appear to be found in the issuance of a temporary injunction, final disposition to be made following the hearing and determination of the issue upon evidence to be taken before a referee. Such temporary restraining order will issue upon the purchaser giving an undertaking with sufficient sureties in the sum of $1,000. Either party may apply for an order of reference. Pending the giving of such security and issuance of the order, execution of the writ of assistance will be stayed.
Ordered accordingly.