Opinion
July Term, 1902.
R.B. Richards, for the appellant.
H.J. Kneeland, for the respondent.
There is no merit in the defendant's contention. The shades are personal property as a matter of law. ( Cosgrove v. Troescher, 62 App. Div. 123.) Assuming that window and door screens are not property which in their own nature determine their legal character, nevertheless the screens in dispute should be deemed personal property. Parties may by agreement control the legal character of property. The legal character of the screens mentioned has been fixed as between the parties hereto. The screens were not for continuous use nor essential to the use and enjoyment of the doors and windows of the house. At the times mentioned they were not in actual use but wrapped and stored. Before the sale they were openly declared by the plaintiff to be personal property which she desired to sell in case the real estate was sold, and defendant well knowing the plaintiff's claim in regard to them included them in a list of other articles concededly personal property.
Plaintiff had a right to assume at the time of the sale that bids in the defendant's interest were made with the understanding that the shades and screens were not a part of the real estate and the purchase was undoubtedly made with that understanding. After the sale the parties hereto, in the presence of the defendant's wife, in whose name the purchase was made at the foreclosure sale, in recognition and acceptance of the plaintiff's claim in regard to the screens, entered into an agreement for the purchase of the same, and the defendant should not now be allowed to assert that the articles so purchased were not personal property.
The sale should not be declared void as being in conflict with the Statute of Frauds. If the sale of the several articles was one transaction, making the amount of the purchase more than fifty dollars, then a part at least of the articles so purchased were delivered and accepted under the contract. Defendant did not repudiate his agreement to purchase the shades and screens until plaintiff had wholly removed from the house and premises. He then forbade the plaintiff taking the shades and screens, and took possession from her of the house, including the shades and screens and other personal property, and has ever since retained the same. In doing so there was no reservation or condition relating to the shades and screens. They appear to have been delivered by the plaintiff with intent to vest the right of possession and ownership in the defendant, and their acceptance and retention by the defendant appears to have been with intent to take and hold the possession of them as owner. After defendant took possession of the house, including the personal property therein, the plaintiff ceased to have any real or apparent ownership in the shades and screens. Thereafter they were in the exclusive dominion of the defendant. The real contention between the parties relates to the legal character of the shades and screens. Defendant admits that he agreed to pay thirty dollars for the shades and thirty-five dollars for the screens, but his reason for refusing to pay for them appears from the statement by him, subsequent to the plaintiff's removing from the house, in which he said that he had been told that day that the shades and screens belonged with the house and that he did not have to pay the plaintiff therefor. The shades and screens as between the parties to this action, being as we have seen, personal property, the defendant should not be allowed to retain them under the delivery as made without paying therefor as agreed.
Judgment and order affirmed, with costs.
Judgment and order unanimously affirmed, with costs.