Opinion
Submitted October 25, 1935 —
Decided April 2, 1936.
Chattels which form a necessary part of a refrigerating plant, installed in an apartment house, are necessary for the completion of the structure in which they are placed, and become part of the realty, and are not severable without material injury to the freehold, within the Uniform Conditional Sales act.
On appeal from the Supreme Court wherein judgment for the plaintiff was denied by Circuit Court Judge Joseph L. Smith, who filed the following reasons:
"This is an action by the B O Radio, Incorporated, a corporation, against The Prudential Insurance Company of America, a corporation, in replevin, for the possession of twenty-five Zerozone cabinets, twenty-five Zerozone coils, and one Zerozone compressor located at 527 Thirty-fourth street, Union City, New Jersey, an apartment house containing twenty-five apartments.
"The chattels sought to be replevied were sold under a conditional sales contract, reserving title in the vendor until paid for.
"All the material facts in the contract, both as to the terms of the contract and as to the manner of installation and the relation of the parties, are submitted under a stipulation of facts.
"The defendant came into possession of the apartment house wherein the equipment in question was installed by foreclosure of its mortgage. The apartment house in question did not originally have a refrigerating system. The plaintiff corporation sold the twenty-five boxes, coils, and compressor in question under the conditional sales contract, which excluded from its terms risers, conduits, and other equipment incidental thereto. These risers, conduits, and other equipment incidental thereto were supplied by the plaintiff corporation to the owner of the property free of charge. The owner undertook to install and, in fact, installed such equipment. It is also in evidence that the owner built a concrete foundation upon which subsequently the compressor was placed in the cellar.
"Upon these facts the plaintiff claims a distinction from the facts in the well known cases of Domestic Electric Co., Inc., v. Mezzaluna, 109 N.J.L. 574 , and Russ Distributing Corp. v. Lichtman, 111 Id. 21 ; 166 Atl. Rep. 513.
"It cannot seriously be maintained that when the plaintiff sold the refrigerating boxes, the coils and the compressor at a certain price, and at the same time gave free of charge the other necessary equipment for the installation of the system, it was not intended that the materials supplied free of charge and the materials sold under the contract were all to form part and parcel of one institution or system; and the further fact that this equipment furnished free of charge and incidental to the maintenance and operation of the refrigerators was installed by the owner would at the most affect the prices charged, and would not in any manner alter the fact that the installation of a complete system was intended and contemplated.
"It will be noted that in the Domestic Electric Co., Inc., case, supra, the vendor did not claim the equipment incident to the refrigerators, coils, and compressors, such equipment admittedly forming an integral part of the building. In that case, as in the present case, all that the vendor attempted to replevy were the refrigerators, coils, compressor, and the cabinets.
"In the Domestic Electric Co., Inc., v. Mezzaluna case, supra, the court said: "While the appellant might remove portions of the equipment without physical damage to the property, considered merely as real property, it could not do so without wholly destroying the system considered as part of the building as an apartment house." And, further (at p. 579): "When it is considered that the refrigerators and gas ranges are part of the plant of an apartment house, and that the building, as an apartment house, cannot function without them, it may well be doubted that they are removable without material injury to the freehold * * *. They are no more removable without material injury than would be the carrying away of the front door, although the unhinging of the door would be less difficult. The word "material," as used in the statute, in one sense means material injury to the structure, but it also connotes injury to the institution of which the structure is a part." See Future Building and Loan Association v. Mazzocchi, 107 N.J.L. 422.
"In the case of Russ Distributing Corp. v. Lichtman, supra, the trial court found as a question of fact that all that had to be done was to uncouple the couplings and take the units out, and that there was no material damage to the freehold or actual injury by the removal. In the Russ case, likewise, there was no attempt to take out the risers and similar equipment, the vendor merely claiming the compressors, the cabinets, and the coils.
"I do not see any material difference between the position of the plaintiff in the instant case, who furnished the risers and similar equipment free of charge, and is now attempting to replevy the various cabinets, coils, and the compressor, and the position of the plaintiff in the two cases above cited, where the vendor was voluntarily abandoning the risers and similar equipment. As stated in the Russ case, supra, the compressor was coupled with a tubing or pipes, which ran to several apartments, and they were coupled to the coil and units in each cabinet, which latter stood on the floor, and were not permanently attached or fastened thereto. The court in the Russ case, supra, in defining `material injury to the freehold,' stated that `it has been definitely construed and defined in this court with respect to equipment such as refrigerating plants in apartment houses as in one sense being physical injury, but in another "injury to the institution of which the structure is a part."'
"Under the authority of these two cases I am constrained to grant the motion of the defendant for the direction of a verdict and to deny the motion, of course, of the plaintiff for the direction of a verdict."
For the appellant, Haines Chanalis and Patrick J. Maloney.
For the respondent, Carey Lane, Robert Carey and Harry Lane.
We agree with the conclusions of Judge Smith that the case is within the holdings of this court in Domestic Electric Co., Inc., v. Mezzaluna, 109 N.J.L. 574 , and Russ Distributing Corp. v. Litchman, 111 Id. 21. To these cases may be added that of Smyth Sales Corp. v. Norfolk Building and Loan Association, 116 Id. 293.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, LLOYD, CASE, DONGES, HETFIELD, DEAR, WOLFSKEIL, RAFFERTY, JJ. 9.
For reversal — BODINE, HEHER, PERSKIE, WELLS, JJ. 4.