Knight v. Sackett & Wilhelms Lithographing Co. had any property in, or any right to, the possession of these stones at any time. He never had any interest in the stones except under his contract with the Hatch Company, which gave him the right to have impressions or prints made from them. It is true that he had paid for the labor of engraving them; but it is very clear from his evidence that, by the agreement into which he entered with the lithographing company, the ownership of the stones continued in the company, and that he was only to have his printing done at so much per thousand sheets. The contract between him and the Hatch Company was one which bound the latter to render its skilled services and which secured to it a fixed compensation. The appellant suggests that the transaction came under a head of bailments known as locatio operis faciendi; but that would only have been the case if the plaintiff had furnished the stones and had employed the lithographers to do the engraving upon them. The learned trial judge thought that a tenancy in common of the stones had been created, and his dismissal of the complaint was upon the ground that trover for conversion would not lie unless the plaintiff could claim as sole owner. But we do not think that the contract testified to, made out an ownership in common. Ownership may rest upon agreement; but no inference can be drawn from the plaintiff's version of the transaction that the Hatch Company had agreed that the stones, as engraved, should be owned in common. The evidence was that the stones were to belong to the Hatch Company, and that it was not to print from them for anybody else. The plaintiff says: "These designs were to be held upon the stones for me for no purpose whatever except to do my printing as I might order it, that is all. That is the reason they were to be kept upon the stones for me." Taking the plaintiff's statement of the transaction, it is plain that the Hatch Company had bound itself to hold, and to print from, these particular designs (the ownership of which seems to have been secured to the VOL. XXXI.-25 Knight . Sackett & Wilhelms Lithographing Co. plaintiff in part, if not wholly, by copyright) whenever ordered by, and solely for, the plaintiff at stipulated rates. This agreement, in its exclusive features, rested upon the consideration of what plaintiff was to pay at once towards the expense of doing the work of engraving, and upon the profits to be derived from the business to be given thereafter. The agreement negatives the idea of any ownership in plaintiff of these stones, by the nature of its requirement of services to be rendered and from the absence of any claim to own the stones themselves. Nor was there any confusion, or an admixture of any property of the plaintiff with, or in, the property of the Hatch Company. The agreement testified to, again negatives that idea. Το that agreement plaintiff could hold the company, and if, by parting with the stones, it disabled itself from performing its agreement, it exposed itself to an action for its breach. In such an event, however, no rights of the plaintiff would attach to and follow the stones into the hands of strangers, other than, at furthest, such as equity might recognize. It is quite possible that such an agreement would be recognized and protected in a court of equity, and that relief might be obtained by injunction or otherwise, if necessary to protect the plaintiff's rights against an improper use or a destruction of the lithographs. But it is not necessary or proper to decide the question here, and upon such proofs, whether the defendant acquired any greater or other rights to the use of these engraved stones than were possessed by the Hatch Company. Nor does it appear that the defendant refuses to carry out the agreement made with the Hatch Company. So far as it appears, the defendant may be quite willing to carry out the original agreement and to print for the plaintiff at the rates stipulated for with the Hatch Company. However that may be, we hold that this plaintiff never had any title to, or any right to the possession of, these stones, and that the agreement. which he testified Cahn v. Hewsey. to, was one simply for the performance of services in the making and the transferring of lithographic engravings. In any view of the case, it is impossible to see how the plaintiff could allege that there had been any wrongful conversion of his property by the defendant, and the judgment appealed from should be affirmed, with costs. All the judges concurred (BARTLETT, J., being of opinion that the Hatch Company and plaintiff were, under the contract, tenants in common of the stones and engravings thereon; but concurring on the ground that plaintiff invoked an improper remedy). Judgment affirmed. CAHN v. HEWSEY. N. Y. Superior Court, Special Term; May, 1894. 1. Fixtures.] Hand painted canvases firmly cemented and affixed to the ceiling of a building at the time of the execution and delivery of a purchase money mortgage on the real estate must be regarded as fixtures and covered by the mortgage, especially where it appears from the dealings between the parties that they so regarded them.* 2. Injunction.] Where the removal of such fixtures would cause a serious injury, and there is danger that mortgagee's security may prove inadequate, he is entitled, even before the mortgage is due, to an injunction against their threatened removal. Motion by plaintiff to continue temporary injunction granted in an action brought by Isaac Cahn, a mortgagee, against Mary S. Hewsey, the mortgagor, to restrain the commission of waste, impairing the value of the mortgage security. * Compare the preceding case. Cahn 7. Hewsey. Nathan, Sondheim & Sondheim, for motion. Pavey & Zaring, opposed. MCADAM, J.-On February 28, 1894, plaintiff conveyed to the defendant a lot and private residence known as No. 1045 Fifth Avenue, in the city of New York, for the consideration of $80,000, subject to a first mortgage of $40,000, and then a lien on the premises, and the balance of the purchase money was paid by the execution of a consideration money mortgage on said premises of $20,000, and the execution of another mortgage on Brooklyn. property for a like amount. At the time of the said conveyance and delivery of the mortgage there were contained in the premises five certain ceilings, consisting of hand painted canvas, firmly cemented and affixed to the building. The ceilings were painted by one Mr. Dupounais, who has since died. They were costly and handsome, and enhanced the value of the premises. The question involved is, whether this painted canvas so affixed forms part of the realty, or whether it is personalty, and not covered by the mortgage. The defendant, regarding the painted canvas as personalty, proposes to detach it from the ceiling, and has advertised it for sale at auction with her household effects. The defendant calls the painted canvas tapestries. The subjects represented thereon are such as "Arts and Science," "Music," "Spring,"" Winter," etc. Defendant claims that they are ornamental annexations, affixed for the purpose of rendering the occupation of the house more convenient or its appearance more pleasing; that they are articles of personal comfort or pleasure, occupying the same relation to the ceilings that pictures and panels do to the walls, and rugs and carpets do to the floor. Plaintiff, on the other hand, insists that the canvas Cahn v. Hewsey, paintings were affixed to the ceilings so as to become part and parcel of the realty, not capable of being removed except by defacing the ceilings and injuring the realty. At the time of the conveyance by the plaintiff to the defendant, a schedule of the personalty in the house which was passed by the deed was made, and forms part of the contract of sale. In it were specified with great particularity all the articles of personalty which were to go to the defendant, and the canvas paintings or tapestries do not appear therein. It would, therefore, seem that if the canvas paintings or tapestries are personalty, and not part of the realty, they did not pass by the deed to the defendant, and the title thereto is still in the plaintiff, and the defendant has no authority whatever to dispose of them. Regarding them, however, as realty, they passed by the deed and are covered by the mortgage. This circumstance is material, as showing that the parties themselves regarded the canvas paintings or tapestries as realty, and this intention should be respected. If title passed by the deed to the defendant, it is clear that they are embraced in the mortgage which was given back for part of the consideration money (8 Am. & Eng. Encl. of L. 50). For the same rule respecting fixtures prevails between mortgagor and mortgagee as between grantor and grantee (Snedeker v. Warring, 12 N. Y. 170; Laflin v. Griffiths, 35 Barb. 58; Robinson v. Preswick, 3 Edw. Ch. 247). Considering them, therefore, as embraced in the mortgage, the mortgagee is entitled to maintain the present action for injunction to prevent waste (3 Waits' Act, and Def. 699; Thomas on Morts. 52; Jones on Morts., § 684; Ensign v. Colburn, 11 Paige R. 503). And this remedy may be invoked even before the mortgage is due (Salmon v. Clagett, 3 Bland's Ch. 125). The inquiry is, whether there is damage done which injures the reversion. This injury may be immediate, |