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THE LAW OF MOTION PICTURES
the happening of an event over which neither party has any control, an implied condition will be read into the agreement to the effect that the contract shall be abrogated upon the non-happening of such an event.” 25
Section 77. — What are fixtures?
In considering what tests to apply to the various parts of the theatre building to determine whether or not they are fixtures, regard must be had to the use for which they are intended, the manner in which they are attached to the realty, and what the condition of the theatre would be were they removed.
Chairs on the floors of the orchestra and balconies and in the boxes are fixtures attached to the realty and may not be removed,26 although a distinction has been made
25 Marks Really Co. v. “Churchills” (1915), 90 Misc. (N. Y.) 370; 153 N. Y. Supp. 264. See also Marks Realty Co. v. Hotel Hermitage (1915), 170 A. D. (N. Y.) 484; 156 N. Y. Supp. 179; Marks Realty Co. v. Rectors (1915), 156 X. Y. Supp. 180.
26 Gould v. Springer (1912), 206 N. Y. 641; 99 N. E. 149. Lessee of a theatre was notified by the Board of Health to remove torn and unclean carpets and unsafe and broken chairs from the orchestra floor. Plaintiffs made the repairs and brought action for the sum expended. Held that chairs on the floor of the
orchestra were fixtures attached to the realty. The rights of the parties being fixed by the lease, the plaintiff was under no duty to make the repairs, and a verdict in plaintiffs’ favor was affirmed.
Forbes v. Howard (1856), 4 R. I. 364. Where in a contract for the construction of a building the defendant agreed to furnish the fixtures of such a building it was held that seats were fixtures and should have been furnished by defendant.
To the same effect: Bender v. King (1901), 111 Fed. (C. C.) 60; Oliver v. Lansing (1899), 59 Neb. 219; 80 N. W. 829.