
    William H. Schmohl, Appellant, v. James J. Phillips, Respondent.
    First Department,
    May 6, 1910.
    Contempt—financial inability to comply with decree no defense — procedure where defendant cannot comply.
    A motion to punish a defendant for contempt in failing to comply with a decree requiring him to remove obstructions from lands leased from the plaintiff should not be denied merely because the defendant has not the financial ability to comply.
    The decree is binding, and cannot be questioned except it be changed or modified on an appeal, or by an application in a proper action or proceeding.
    
      It seems, that the question of the defendant’s ability to comply- with the order may be determined upon his motion to be discharged from imprisonment under section 775 of the Judiciary Law.
    Appeal by the plaintiff, William H. Schmohl, 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 11th day of March, 1910, denying the plaintiff’s motion to punish the defendant for contempt.
    
      Harris Wilson, for the appellant.
    
      Joseph A. Fagnant, for the respondent.
   McLaughlin, J. :

Plaintiff leased to the defendant a parcel of land in the city of New York to be used as a tennis court and skating rink. Instead of using it for that purpose the 'defendant used it to store dirt, rocks and rubbish, and the action was brought to restrain him from so using it' and to compel "him to remove the materials placed thereon. Plaintiff had a judgment which provided, among other things, as follows: It is “ furthey ordered, adjudged .'and decreed that the defendant forthwith remove the dirt, rocks and rubbish placed by him upon the said lots and rebuild the fence and restore said premises to the condition in which they were at the time of making the lease set- out in the complaint herein.” A copy of the judgment was served upon the defendant, together with a notice of its entry, and also upon his attorney. The defendant having failed to comply with the provision of the judgment quoted, plaintiff thereupon made a motion to punish him for contempt. The motion was denied and he appeals.

The only answer to the motion was defendant’s financial inability to comply with its terms. The motion could not be defeated in this way. Whether the defendant should remove the materials referred to and restore the land to the condition in which it was at the time he leased it was finally settled and determined by the judgment, and it could not thereafter be changed or modified except by an appeal or by an application in a proper action or proceeding to set it aside, or to the justice presiding at the trial to modify it. The order appealed from, in effect, modified the judgment by striking therefrom the provision referred to, since'the plaintiff ’now can obtain ho relief under that provision. The General Rules of Practice, as well as the. orderly administration of justice, do not permit a judgment to be destroyed in this way. The motion should have been granted, and the question of, defendant’s ability to comply with it determined upon his motion to be discharged from imprisonment as provided in section 775 of the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35). (Wheelock v. Noonan, 55 N. Y. Super. Ct. 302; Ryckman v. Ryckman,, 34 Hun, 235; Matter of Strong, 111 App. Div. 281; affd., 186 N. Y. 584.)

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion to punish the defendant for contempt granted, with ten dollars costs.

Ingraham, P. J;, Clarke, Scott and Dowling, JJ., concurred.

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