Alderson, B., in Weeton v. Woodcock, 7 M. & W.14, says: "The rule, to be collected from the several cases decided seems to be this; that the tenant's right to remove fixtures continues during his original term, and during such further period of possession by him, as he holds the premises under a right still to consider himself a tenant," and the right to remove the fixtures was denied to the assignees of the tenant, although they retained the possession, the plaintiff having made an entry to enforce a forfeiture. See also Minshall v. Lloyd, 2 M. & W. 450; Shepard v. Spaulding, 4 Metc. 416. The tenants, holding under a new demise, had not the legal right to remove the fixtures put by them on the premises during a former term, there being no mention of the right in the second lease. The offer to prove that, by custom in the city of New York, tenants had a right to remove buildings, did no go beyond the right conceded by the defendant. The evidence, therefore, if otherwise competent, could not have aided the plaintiff.
The difficulty is, that the conceded right was abandoned and lost by its non-exercise during the tenancy under which the buildings were erected. The remedy of the plaintiff was against the persons wrongfully removing the buildings, and not on the defendant's covenant.
Peckham, J., in
125 New York, 341 (349). - 1891.
* * * If the evidence under discussion had been received and submitted to the jury, the fact of a waiver of this right to claim a forfeiture might have been found, and the case would then be that of a tenant with a right to remove a fixture at the termination of his lease, holding over after such termination, and on being evicted by summary proceedings on account of such holding over, claiming and being refused the right to take such fixture with him. The defendant claims the tenant has no such right after the termination of the tenancy. He urges that the right must be exercised during the running of the term, and if delayed longer than that time, even though the tenant remain in possession he cannot remove the fixture. I think no such absolute rule exists in this State. In Dubois v. Kelly, 10 Barb. 496, it was held that the right which a tenant has by agreement with the landlord to remove such buildings as he may erect for the purpose of his tenancy, remains with the tenant after his term expires and while he still remains in possession of the premises. In Ombony v. Jones, 19 N. Y. 234, although the opinion in the Dubois Case was somewhat criticised upon the question as to what things a tenant had, in the absence of agreement, a legal right to remove from the land to which they had been affixed, yet the question as to the time of such removal (while the tenant still remained in possession) was not criticised or discussed. It has not been denied, that I can find, in any case here. The title of the landlord to fixtures which the tenant has left after the expiration of the term and after his delivery of possession, and which the tenant would otherwise have had the right to remove, is based upon the presumption of abandonment by the tenant to the landlord. No such presumption can attach so long as the tenant remains in possession. In Loughran v. Ross, 45 N. Y. 792, it was held that where a tenant had a right to remove fixtures erected by him on the demised premises, yet if he accepted a new lease of the premises including such fixtures without reservation or mention of any claim to them, and entered upon a new term under the new lease, he lost the right of removal, even though his possession had been continuous. The decision in that case was placed upon quite technical reasoning, supported it is true by some authorities, but it is not one of those cases whose principle should be extended. The taking of a new lease where nothing is said as to the fixtures is equivalent, it is said, to a surrender of the premises as they exist to the landlord, and a taking of the premises from him in the same condition, which at the end of the lease the tenant is bound to surrender. What can be said on the other side of this question has been urged by Mr. Justice Cooley in Kerr v. Kingsbury, 39 Mich. 150, and in Second National Bank v. Merrill Co., 69 Wis. 501. See also title " Fixtures," vol. 8, page 63, Am. & Eng. Enc. of Law. But where there has been no acceptance of a new lease, and the tenant has simply continued in possession after expiration of his term, the better authority seems to be decidedly in favor of his right to remove the fixtures while he remains in possession in his character as tenant. Taylor's Landlord and Tenant (8th ed.), sec. 551; Penton v. Robert, 2 East, 88; Weeton v. Woodcock, 7 Mees. & W. 14; Dubois v. Kelley, supra. Penton v. Roberts has been somewhat unfavorably critcised in England, but the particular point in question has not been directly overruled that I have seen. Although the plaintiff was holding over subsequent to September, 1885, yet he was, nevertheless, still in possession by reason of the original leasing. And even in the case of Loughran v. Ross, supra, Judge Allen says, the removal may be made so long as the possession continues, although the term may have ended, if there has been no new agreement. See also Clark v. Howland, 85 N. Y. 204. There is no reason why the right should be lost before he quits possession as tenant, even though he holds over. The rule is based upon a question of public policy, which suggests that the tenant shall remove during his term, i. e. while in possession as a tenant, whatever he has the right to remove at all, so that the landlord may be himself protected and so that the tenant shall not be permitted, after his surrender of possession, to enter upon the possession of the landlord or his succeeding tenant and remove what he might have taken before, but which by leaving he has tacitly abandoned, and which the landlord may already have let to his succeeding tenant. A regard for such succeeding interests requires the adoption of a rule necessitating the removal of fixtures during the time of possession, but not in all cases during the running of the term. * * *