Klein v. Wegman — 26 N.Y.S. 285

Majority

p. 285

(74 Hun, 1.)

KLEIN v. WEGMAN.

(Supreme Court, General Term, Second Department.

December 1, 1893.)

Headnote

Judgment by Default—Vacation.

A motion to vacate an order, entered by default, adjudging defendant guilty of contempt for refusing to obey a decree requiring him to remove that part of his building that encroached from his land upon that of plaintiff, based on affidavits alleging that the encroachment was-slight, that defendant had sold his property, and that neither the purchaser nor plaintiff would permit him to enter to comply with the decree, was properly denied where it appeared that, pending the action to-compel the removal, defendant sold, giving the purchaser a bond to indemnify him against the encroachment, and that, before the institution of the contempt proceedings, plaintiff gave defendant permission to enter-for the purpose of removal.

Appeal from special term, Kings county.

Action by William Klein against John Wegman to compel the-removal of an encroachment upon plaintiff’s land. There was judgment for plaintiff. Upon defendant’s failure to obey the judgment,, plaintiff made application for an order to have him punished for contempt. From an order refusing to vacate an order, entered by default, granting the application, defendant appeals.

Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

W. B. Veeder, for appellant.

Geo. F. Murray, (Geo. W. Wingate, of counsel,) for respondent.

The plaintiff and defendant were owners of adjoining property. The defendant erected his building so as to encroach on the plaintiff’s premises. The plaintiff commenced an-action to restrain the encroachment, and procured a decree that the defendant was required to remove the encroachment within 20 days-after service of a certified copy of the judgment, and in accordance-with its directions. The defendant has not done so. Upon an application to the court to punish him for his contempt, the defendant made no appearance, and an order was made adjudging him guilty and imposing a fine, and directing his confinement in close custody until he obey the judgment. The defendant made application to open this default, and this was denied. The appeal is from this-order. The order was right. The affidavits excuse, by alleging-that the encroachment is slight; that the defendant has sold his property, and the purchaser will not let the defendant enter upon it to comply with the judgment; that the plaintiff will not permit Mm to enter upon his property for the same purpose. The defendant has given a bond to indemnify his vendee against the encroachment, and the plaintiff, although he refused at first, notified the defendant, before these proceedings were commenced, that he could enter on his land to remove the encroachment. The extent of the-

p. 286

same is not material. If it was so considerable as to be valuable ■enough to take, and the judgment ordered its removal, the defendant owes obedience to the judgment. If the papers read, upon the motion to open the default had been read on the motion to punish for contempt, they would furnish no defense for the disobedience of the judgment. A motion to set aside the default would be reached on the merits. The defendant does not seem to be willing to obey the judgment. He put up the house in defiance of the pending suit to restrain it; when sold, gave a bond to justify the obstrfiction; and then asserts that the purchaser from him will not let him do so. The order should be affirmed, with costs and disbursements. All concur.