
    WILLIAM A. WHEELOCK, Respondent v. MICHAEL NOONAN, Appellant.
    
      Contempt—disobedience of injunction order—inability to perform act— poverty.—Appeal—what not waiver of.
    
    The judgment herein enjoined the defendant from keeping upon plaintiff’s premises certain rock and stone, placed there by defendant, and ordered defendant to remove the same, on or before March 15, 1886. The judgment, etc., was duly served on defendant, but he wholly failed to-comply therewith. On proof of these facts, the court, on proceedings taken, found defendant guilty of contempt, and further that said contempt defeated and prejudiced plaintiff’s rights, etc., and fined defendant $100, and further ordered that defendant be imprisoned until he should pay the fine and costs, and do and perform the omissions and things required by said judgment. Held, That the case was brought within the provisions of § 2281, Code Civ. Proc., and as the misconduct proved .consisted of an omission to perform an act or duty which it was yet in the power of the defendant to perform, the order made was proper.
    In opposition, defendant endeavored to show that he was physically unable to perform the act required, and that by reason of poverty he was unable to have the rock removed by others. Held, That whether such facts, if proved, could be urged in opposition to this motion, or whether the proper practice was to commit the accused, and remit him to motion for relief under § 2286, Code Civ. Proc., need not be decided—it not being clear from the evidence that defendant was unable to perform the judgment of the court within the time fixed, or that he is now unable to perform it, and it appearing that he has at present some property.
    That defendant in such a case, has taken advantage of a stay of proceedings for ten days to allow time to make a motion to be relieved from imprisonment, does not preclude him from appealing from the contempt order containing the provision for the stay.
    Before Truax and Ingraham, JJ.
    
      Decided February 6, 1888.
    Appeal from order adjudging the defendant guilty of contempt, for a refusal and neglect to obey and perform the judgment in this action, and committing him to the county jail; there to be kept and imprisoned, until he shall pay the fine and costs imposed, and do and perform the matters and things required in and by the judgment of the court, as set forth therein.
    
      L. Laflin Kellogg, for appellant:
    I. The defendant was physically and financially unable to comply with the decree of this court. The affidavits upon which the order to show cause was granted, simply showed failure to obey the decree. They did not show ability to obey. The defendant’s answer to this motion was in these words: “Since the rendering of the judgment of the court in this action 1 have been physically unable, personally, to obey the same, or remove the stone by my own hands, and I am and have been, financially and pecuniarily, unable to pay others for its removal.” If anything more was needed the defendant, who was tendered for that purpose, could have been examined under order of the courts. This course was not pursued. The proof shows that defendant is without money or assets, covered with judgments and enjoined from disposing of his assets, too poor to support his family, it must be evident to the court that the defendant is powerless to obey the decree.
    II. Inability to obey the decree or order of a court is a complete defense of proceedings to punish for contempt. Rapelje on Contempts, 155 § 115; Cochran v. Ingersoll, 13 Hun 370; 73 N. Y. 613; Doran v. Dempsey, 1 Bradf. 490; McCartin v. Van Sickle, 10 Bosw. 694; Goodenough v. Davids, 4 Monthly Law Bull. 35 ; Hogue v. Hayes, 53 Iowa 377; Ex parte Bigg, 64 N. C. 202; Adams v. Haskell, 6 Cal. 316; Re Hills, 13 Phila. Pa. 340.
    III. The commitment should not have been ordered in the first instance, when the defendant’s inability had been shown. Cochran v. Ingersoll, 13 Hun 370; 73 N. Y. 613. It is true as claimed that section 2281, Code of Procedure provides that one guilty of contempt must be punished. It is also true that section 2286 allows a defendant guilty of contempt to apply for a release. But unless the court find that the defendant is able to perform, the court has no power to make the order for perpetual imprisonment. Code, § 2285.
    IV. The order appealed from is defective in that it contains no adjudication that the defendant is guilty of contempt, and that such misconduct was calculated to and did impair, defeat, impede and prejudice the rights of the parties to the action. § 2281 Code Civ. Proc.; Mahone v. Mahone, 5 Civ. Proc. Rep. 58; Swenarton v. Shupe, 40 Hun 43; Albany City Bank v. Schermerhorn, 9 Paige 372; Clark v Bininger, 75 N. Y. 344; People v. Rogers, 2 Paige 102 ; Fischer v. Raab, 81 N. Y. 235; Sandford v. Sandford, 40 Hun 540. The recitals in the order, if complete, are insufficient. “ It must be made to appear and be adjudicated.” Fischer v. Raab, 81 N. Y. 238. “ It must be ascertained and adjudicated.” Sand-ford v. Sandford, 40 Hun 540. The recital in this case is not that the misconduct was calculated and did defeat, etc., but that the contempt was calculated and did defeat, etc. It is hard to see how the contempt had any effect except as between the court and the prisoner.
    
      Martin & Smith, attorneys, and George A. Strong of counsel, for respondent:
    I. The court really erred in defendant’s favor, for the proper practice is to adjudge the contempt first, and then allow the excuse of poverty to be presented. Code, § 2286. The excuse of poverty, by express provision, is only received, from an offender in actual confinement, .and cannot be presented, upon the motion to punish for contempt. Ryckman v. Ryckman, 34 Hun 238 ; Matter of Snyder, 103 N. Y. 181. Cochran v. Ingersoll, 13 Hun 370, is distinguishable.
    II. Admitting that the issue of poverty could be tendered upon this motion, the order was right upon the merits. Clark v. Bininger, 75 N. Y. 349; Matter Snyder, 34 Hun 302 ; 103 N. Y. 181; Wheelock v. Noonan, Daily Reg., Nov. 23, 1887.
   By the Court.—Ingraham, J.

By subdivision three of section 14 of the Code, it is provided that the court has power to punish, by fine and imprisonment, a party to an action for any disobedience to a lawful mandate of the court, other than a payment of a sum of money, and by section 2266 of the Code, it is provided that in a case specified in section 14, the offense must be punished as prescribed in that title. By section 2269 it is provided that the court or judge authorized to punish for the offense, must, upon being satisfied by affidavits of the commission of the offense, either make ■ an order requiring the accused to show cause before it why he should not be punished for the alleged offense, or issue a warrant of attachment. Section 2283 provides for the proceeding upon the return of the order to show cause, where such an order is made, and it is there provided that if the determination is to the effect specified in section 2281, viz.: that the accused had committed the offense charged, that it was calculated to or did actually defeat, impair, impede or prejudice the rights or remedies of a party to an action, the court must make a final order accordingly, and direct that he be punished by fine or imprisonment, or both, as the nature of the case may require, and upon service of a copy of the order so made, the offender may be committed "without further process. By section 2285 it is provided that where the misconduct proved consists of an omission to perform an act or duty which it is yet in the power of the offender to perform, he shall be imprisoned only until he has performed and paid the fine imposed.

The judgment in this action enjoined and restrained the defendant from keeping and maintaining, upon certain premises of the plaintiff, the whole or any of the rock or stones which the defendant theretofore placed upon the said premises, and ordered and directed the said defendant to remove from the said premises all of said rocks and stones, such removal to be fully completed on or before the 15th day of March, 1886. It appeared that such judgment was on the 6th day of January, 1886, duly served upon the defendant, and that said defendant had neglected and refused to comply with said judgment, and had not removed from the premises all of the said ' stones or rocks on or before the 15th day of March, 1886. On this proof, the court found that the defendant had been guilty of the contenipt charged against him, in that he had refused and neglected to obey and perform the judgment of the court, and further found that the said contempt was calculated to and did defeat, impair, impede and prejudice, the' lawful right of the plaintiff herein to have so removed from his premises mentioned in said judgment, the rock which the defendant had previously placed thereon; and it was thereupon- ordered that a fine of one hundred dollars be imposed upon the defendant for his above mentioned contempt, and further ordered that the defendant be committed to the common jail of the city and county of New York, there to be kept, imprisoned, until he should pay the fine and costs imposed as aforesaid, and do and perform the omissions and things required in and by the said judgment of the court.

The evidence before the judge at special term was sufficient to sustain the finding that the defendant had been guilty of the contempt, and that said contempt did defeat and prejudice the plaintiff’s right, etc., and the case was thus directly brought within the terms of section 2281 of the Code, and as the misconduct proved consisted of an omission to perform an act or duty which it was yet in the power of the defendant to péform, the judge was justified in directing that the defendant be imprisoned until he perform the act and pay the fine imposed.

In opposition to the motion, the defendant endeavored to show that he was physically unable to perform the act required to be done by the judgment, and that by reason of poverty he was unable to have the rock removed and so comply with the judgment of the court.

Whether such fact if proved could be urged in opposition to this motion, or whether the proper practice was to grant the order committing the accused, and if he wished to be relieved from imprisonment to require him to make amotion to be so relieved under section 2286, of the Code, it is not necessary to determine, as from the evidence presented to the court, it is not by any means clear that the defendant was unable to perform the judgment of the court within the time that the judgment directed it to be done, or that he is now unable to perform it. His explanation of the disposition of the moneys received by him is not entirely satisfactory, and it is clear that he has at present some property. Under such circumstances, we are of the opinion that the court was right in granting the order and reserving the determination of the question of the defendant’s ability to obey the judgment to be determined on a motion to be relieved' from the imprisonment, when such terms could be imposed as would best protect the interests of the plaintiff.

We think therefore that the order should be affirmed with ten dollars costs and disbursements.

As to the motion to dismiss the appeal, on the ground that the defendant has accepted the privilege allowed him by the order appealed from, we do not think that motion should be granted.

The order committed the defendant for contempt and stayed the proceedings for ten days to allow the defendant to make a motion to be relieved from imprisonment. The defendant had the legal right to make such a motion. He did not make it in pursuance of any permission contained in the order appealed from. There was, therefore, no acceptance by him of any benefit under the order that would prevent him from prosecuting the appeal.

That motion must therefore be denied, without costs.

Truax, J., concurred.  