b. What mode or degree of annexation is conclusive against removability ; what is not.

Ward V. Kilpatrick

85 New York, 413. - 1881.

Finch, J. - There is one serious question in this case, and a great many which may be disposed of without difficulty. As to the latter a very brief statement of our conclusions must suffice.

The action was to foreclose a mechanic's lien under the act of 1875 (chap. 379), applicable to the city of New York. The defendant was the owner of eight houses in process of construction, and had contracted with plaintiff for mirror frames to be set in the parlor and hall of each house; those in the halls to be arranged to serve the purpose of hat-racks and umbrella-stands. The work having been completed as plaintiff claimed, he presented his bill, and pay-

1 The parts of Che opinion omitted contain a discussion of the legal character of statuary in the Roman Law. - ED. ment being refused filed, the mechanic's lien, which is now sought to be foreclosed. * * *

Some other minor objections were taken in the case, not important to be considered, and it now becomes necessary to determine the principal question, whether the articles furnished became so attached to the buildings in progress of construction as to justify a lien under the act of 1875. The language of its first section is " every person performing labor upon, or furnishing materials to be used in the construction, alteration, or repair of any building, etc., shall have a lien upon the same." Labor upon the building, materials used in its construction are the test of the lienor's rights. In other words, the work and the materials both in fact and in intention must have become part and parcel of the building itself. The inquiry approaches so nearly the doctrine of fixtures as to make the decisions in that respect authoritative, and the necessary guides to our conclusion. If, as between vendor and vendee, the mirror] frames in question would have passed by a deed of the real estate, without special enumeration or description, it will follow that they formed part of the house, and were elements in its construction, and so furnished a basis for the lien claimed. The general subject was much discussed in this court in McRea v. Central Nat. Bank of Troy, 66 N. Y. 489. The results arrived at were as precise and definite as the nature of the subject would permit, and must form the basis of our judgment. The question arose between mortgagor and mortgagee, and three requisites were named as the tests of a fixture. These were, first, actual annexation to the realty or something appurtenant thereto; second, application to the use or purpose to which that part of the realty to which it is connected is appropriated; and, third, the intention of the party making the annexation to make a permanent accession to the freehold.

The mirror frames in the present case were actually annexed to the realty. They were so annexed during the process of building, and as part of that process. They were not brought as furniture into the completed house, but themselves formed part of such completion. Those in the hall filled up and occupied a gap left in the wainscoting. They were an essential part of the inner surface of the hall, and of a material and construction to correspond with and properly form part of such inner surface. Those in the parlor fitted into a gap purposely left in the base-board. Both those in the hall and those in the parlor were fastened to the walls with hooks and screws. They could be removed, but their removal would leave unfinished walls and require work upon the house to supply and repair their absence.

They were fitted to the use and purpose for which the part of the building they occupied was designed. They formed part of the inner wall. Their construction and finish was made to correspond with the cabinet work of the rooms. In each house they faced each other and formed the most prominent feature of the internal ornamentation.

They were intended by the owner to be permanently attached to the buildings and to go with them when sold as essential parts of the construction. Three of the houses were in fact thus sold. The owner testified as to these frames, that he regarded them as "the most attractive portion of the house; " that he stated to the agent of the maker, that it was very important to have a few of the frames in immediately " so that a party who would be desirous of purchasing the house could see these mirrors and hat-racks; " that the agreement with Mr. Evers was that he should go on immediately and put in the frames in two or three of the houses " so as to be able to show what the houses would be, without delay; " that the kind of work he called this particular work that was to be done, was "cabinet carpentering; " that on one or more occasions he complained of the work not having been done, adding " and that I could not get my houses ready for market; " and that he was very strenuous about having the frames put up " because he wished to show the houses to some parties." These facts indicate very plainly the purpose and intention of the owner to permanently attach the frames to the building and make them a part of the structure. It follows that they became parcel of the realty, and as between vendor and vendee would have passed by deed. The recent case of McKeage v. Hanover Fire Insurance Co., 81 N. Y. 38, does not conflict with this conclusion. In that case the proof showed that the mirrors " were not set into the walls; " were put up after the house had been built; were capable of being easily detached without interfering with or injuring the walls; and were as much mere furniture as pictures hung in the usual way. The difference between the cases is obvious.

We are of opinion, therefore, that the work done by the lienor was work upon the house, and the materials furnished were used in its construction. The objection that no lien attached cannot be sustained.