The opinion
Kruse, P. J. (dissenting):
In the absence of notice, either actual or constructive, to the Genesee Amusement Company of the claim of the plaintiff that the title to the generators should not pass until paid for, I think it cannot be held as matter of law that the generators did not become a part of the real estate. The evidence shows that the plaintiff manufactured the generators for the specific purpose of lighting the particular building then in process of construction and knew that they were to be attached to the building and the land. If, under such circumstances, the generators were attached to the real property with the intention that they should become a part of the realty, without notice to the owner of the land of plaintiff’s claim of retention *381 of title, I think they became a part of the real estate and plaintiff has lost its right to detach and remove them from the land. If, upon the other hand, the Q-enesee Amusement Company had such notice, then the generators not only remained personal property, but the Genesee Amusement Company would not he a purchaser in good faith, even though it paid the McDonell Company, its immediate contractors, for the generators.
I do not intend to suggest that if the plaintiff had removed the two defective and inefficient generators, although originally attached to the real estate under such circumstances as to make them a part of the realty, they would not have regained their character as personal property. But that was not done. Keither do I say that the plaintiff is not entitled to recover the purchase price for the generators from the McDonell Company, permission to remedy or replace them having been refused. But that is quite apart from the question as to whether it is entitled to hold the generators under its conditional sale contract as against an owner who had no notice of the provisions in the contract retaining the title in the plaintiff.
I think the order should be affirmed.
Merrell, J., concurred.
Order reversed, with costs, and verdict of jury reinstated.