Opinion
January, 1931.
Judgment reversed upon the law and the facts, with costs, and complaint dismissed in so far as it seeks judgment against the Seaberg Elevator Co., Inc., with costs. The plaintiff did not establish that it was a bona fide purchaser for value by reason of having extended its mortgage on November 23, 1928, at a time when the elevators in question had been installed by the defendant Seaberg Elevator Co., Inc., without the conditional sales agreement being recorded on that date, the recording having taken place on August 21, 1929. ( McCloskey v. Henderson, 231 N.Y. 130, 135; Boriskin v. Toll Realty Const. Co., Inc., 225 App. Div. 695.) The extension given on that date was not different in terms from that which plaintiff was obligated to give under its prior agreement. This follows from the failure to establish, among other things, that the prior mortgage was one "without amortization" which resulted in its appearing that the prior mortgage was one that had provision for amortization and, therefore, the terms of the extension agreement conform to those required by the contract between the plaintiff and the purchaser in the event that the permanent mortgage was not one "without amortization." The undisputed evidence that the elevator apparatus was severable from the realty without material injury to the freehold, made erroneous a finding to the contrary by the trial court and required a finding that the elevator apparatus was severable without material injury to the freehold. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made in accordance herewith. Lazansky, P.J., Kapper, Carswell, Scudder and Tompkins, JJ., concur. Settle order on notice.