Mills v. Leland — 156 A.D. 597

Majority

p. 597

Harriett A. R. Mills, Respondent, v. Francis L. Leland and Others, Appellants.

First Department,

May 16, 1913.

Headnote

Judgment — enforcement of mandatory injunction — practice.

A decree granting a mandatory injunction requiring defendants to remove portions of their building which overhang the plaintiff’s lands, being one which cannot be enforced by execution, must be enforced as provided in section 1241 of the Code of Civil Procedure—to wit, by service of á certified copy upon the defendants, and if they refuse or neglect to obey by moving to punish them for contempt.

Even though such decree specifically provides that if the defendants do not obey within thirty days after entry of judgment, the plaintiff may remove the encroachments and charge the expense thereof to the defendants, the plaintiff cannot do so although the thirty days have elapsed without making an application to the court on notice so that the default of the defendants may be judicially determined. The plaintiff has no right to determine the fact of the default.

Appeal by the defendants, Francis L. Leland and others, from an order of the Supreme Court, made at the. New York Special Term and entered in the office of the clerk of the. county of New York on the 5th day of April, 1913, granting the plaintiff’s motion to be allowed the expense incurred by her in removing certain encroachments.

L. Laflin Kellogg, for the appellants.

Joab H. Banton, for the respondent.

This action was brought in equity to obtain a mandatory injunction requiring the defendants, owners of a building

p. 598

adjoining one belonging to plaintiff, to remove part of a cornice and certain ornamental belt courses and sills which overhung plaintiff’s premises. The action resulted in a judgment requiring the removal of the objectionable projections. The judgment, among other things, provided as follows: “Further Ordered, Adjudged and Decreed that the defendants, Francis L. Leland and Frank B. Leland, be, and they hereby are, ordered to remove each and every of the cornices, copings, mouldings and other projections extending south of the south line of the property hereinbefore described and over the property of the plaintiff, within thirty (30) days after the entry of the judgment herein, and without injury to the property of the-plaintiff; it is Further Ordered, Adjudged and Decreed, in event of the failure or refusal of the defendants, Francis L. Leland and Frank B. Leland, to comply with the foregoing portions of the decree of this Court, ordering the removal of each and every of the cornices, copings, mouldings, window sills, ornaments and" other projections extending south of the south line of the property hereinbefore described, and over the property of the plaintiff; that the plaintiff should be permitted to remove the same, or any part thereof, and charge the expense of such removal to the defendants, Francis L. Leland and Frank B. Leland.”

It also contained the clause frequently inserted in equity judgments, as follows: “It is further ordered, adjudged and decreed that plaintiff have leave to apply at the foot of this decree for any relief necessary or proper to carry this decree into effect,”

The judgment was signed on June 29, 1912, and entered on July 12, 1912. A copy of the judgment was served on the defendants’ attorney on July 19, 1912, and on one of the defendants On July 27, 1912. The defendants promptly employed an architect, who completed plans for the work on August 4, 1912, and on August 6, 1912, applied to the department of buildings for a permit to do the work, which was granted on August ninth. A contractor was thereupon employed who proceeded to remove the objectionable part of the cornice, and then undertook to.drop swinging ladders or. platforms from the roof to exit off the other projections. In

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the meantime, however, the plaintiff, undertaking to determine for herself that defendants were in default, had employed a contractor to cut away the offending projections. He had erected a scaffolding arising from the ground, which prevented the use of the swinging scaffolds which defendants’ contractor desired to use. Plaintiff and her contractor refused either to remove their scaffold, or to permit- defendants’ contractor to use it, so that it was impossible for defendants to proceed with the removal of the encroachments. The undisputed statement is made that if defendants had been permitted to proceed the whole work of removal could have been completed by August twenty-sixth. The controversy between the two contractors as to which should complete the work reached an acute stage, calling at times for the interference of the police to preserve order. On August 23, 1912, defendants moved upon an order to show cause for an extension of the time to complete the work, the order containing a stay of further operations upon the part of plaintiff.' This - motion was argued on August twenty-seventh, and denied by an order entered on August twenty-ninth. An appeal was taken by defendants to this court, but was dismissed upon motion of- the plaintiff upon November 1, 1912, upon a suggestion that the work had been wholly completed, and that the question whether defendants’ time to complete it should be extended had become academic.

The real question in this case is as to- the regularity of plaintiff’s proceedings. Her claim is that the defendants’ time to comply with the judgment expired on August 12, 1912, thirty days after the judgment had been entered, and that she had the right then, without any further application to the court, to proceed to do the work herself and to charge the expense to defendants, enforcing the payment by the proceeding now under review. It is true that the judgment in terms requires the work to be performed “ within thirty (30) days after the entry of the judgment,” and authorizes plaintiff upon defendants’ default to do the work herself, but these provisions must be read in the light of the provisions of the Code of Civil Procedure. The judgment required the defendants to do a specific thing, to wit, to remove certain physical encroachments upon the plaintiff’s property. It was clearly not such a judgment

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as could be enforced by execution, and. is, therefore, one provided for in section 1241 of the Code of Civil Procedure to be enforced, after service upon the party against whom it runs, if he refuses or neglects to obey it, by punishing him for a contempt of court. It was necessary, therefore, before plaintiff was in . a position to specifically enforce the judgment that she should serve it, and should apply to the court for its enforcement. It is unnecessary to consider whether- service of the judgment upon the attorney for the defendants would have been sufficient to set the time for performance running, the ■ point being that proceedings for punishment for failure to perform could only be begun by application to the court Upon notice to defendants of their attorney (Pitt v. Davison, ' 37 N. Y. 235 ), which course was not adopted. This proceeding, although plaintiff is careful not to so denominate it, is, in effect, an attempt to punish defendants, as for a contempt, for not complying with the judgment as plaintiff construes it. In our opinion the plaintiff had no right to determine for herself the fact of defendants-’ default. That was a matter to be determined by the court upon due notice to defendants, who might have been able to show'that they had proceeded with due diligence, or that their obedience to the judgment had been prevented by plaintiff herself. Plaintiff was, therefore, premature in assuming that defendants were in default, and must herself bear the expense to which she went upon such premature assumption. Upon the view most favorable to the plaintiff defendants were not in default until thirty days after service of the judgment on their attorney, which would have been August 18, 1912. Plaintiff incurred the expense she now seeks to recover before that date.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. • .

Ingraham, P. J., McLaughlin, Laughlin and Clarke,. JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.