Handler v. Horns

2 N.J. 18, 65 A.2d 523 (1949)

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Nature of the Case

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Facts

Henry Horns and his wife leased the property at issue to their son Fred. The lease was to expire on the first day of the sixth month after the death of the survivor of Fred's parents. The lease also gave Fred the privilege of altering the premises, which had been a seed and garden supply store, to make them suitable to his business of processing, refrigerating, and selling meat. Pursuant to this provision in the lease, Fred installed a refrigeration system in the premises. At any time prior to the expiration of the lease, Fred was to have the option to purchase the property. Otherwise, upon the death of the parents, it was to devise to the Horns' three children as tenants in common. Fred never exercised his option to purchase, and after his mother's death, the premises became the property of himself, his sister Clara, and Hazel Handler (P), the daughter and devisee of a deceased sister as tenants in common. Fred entered into another lease with the new owners. The new lease provided at one point that '...no alterations, additions, or improvements shall be made without the consent of the Landlords..., and all additions and improvements made by the Tenant shall belong to the Landlords.' A second clause in the lease provided that '...the Tenant shall have the right to remove any and all trade fixtures that may belong to it or which it may have installed in the premises...' According to Fred's will, his son (D) was to inherit the business and the fixtures installed in the premises. After Fred's death, D did take over the business, which was still operating in the premises at issue at the time of suit. P sued to partition the property and argued that the fixtures became part of the realty and could not be removed by D. D claims that, because they are trade fixtures, he has the right to remove them. The lower court found for P, holding that the premises could not be physically partitioned, and would have to be sold. It further found that the fixtures had become a part of the premises and had to be sold along with them. D appeals.