
    Village of Haverstraw, Respondent, v. J. Esler Eckerson, Appellant, Impleaded with John H. O’Brien and Others, Defendants.
    Second Department,
    September 23, 1913.
    Contempt—failure to fill in excavation in compliance with judgment — punishment.
    Where in a proceeding to punish a defendant for civil contempt in failing to comply with the provisions of a judgment requiring him to fill an excavation made upon his land so as to furnish lateral support to a public street, it appears that it is within the power of the defendant to comply with the said provisions, but there is no satisfactory evidence of actual present loss or injury to the plaintiff, an order requiring the defendant to pay a fine on account of loss or to be imprisoned until he complies with the judgment should be modified by striking out the provision for a fine.
    Appeal by the defendant, J. Esler Eckerson, from an order of the Supreme Court, made at the Eockland Special Term and entered in the office of the clerk of the county of Eockland on the 4th day of October, 1912, adjudging appellant guilty of a civil contempt of court.
    
      
      Abram F. Servin, for the appellant.
    
      Alonzo Wheeler [ William McCauley with him on the brief], for the respondent.
   Burr, J.:

The affidavits presented in this proceeding and the testimony taken therein clearly establish that it is within the power of defendant Eckerson to comply with the provisions of the judgment entered in the above-entitled action, requiring him to fill the excavation made upon his land to the extent prescribed by the said judgment, and that his refusal so to do is contumacious and willful. There is evidence from one of the tenants in occupation of a part of the land leased by him for brickmaking purposes, that there is nearly or quite sufficient refuse material on his land to make the necessary fill, and that when said tenant attempted to use the same for that purpose, defendant interfered to prevent him. This evidence is uncontradicted. The affidavits introduced by defendant relative to the necessity for fill upon the clay bottom are wholly irrelevant. That question was finally determined upon the trial of the action, and by the judgment entered therein. (Village of Haverstraw v. Eckerson, No. 2, 140 App. Div. 896; affd., 204 N. Y. 635.)

The only questions open for discussion, therefore, arise in connection with the punishment inflicted. The fine of $250, irrespective of proof of any actual loss or injury .to plaintiff, was within the power of the court, and is justified. (Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 773.) Equity also has inherent as well as statutory power to enforce compliance with its decrees by imprisoning a capable but contumacious defendant until he yields obedience. (4 Pom. Eq. Juris. [3d ed.] § 1317.) The statute provides that “A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in either of the following cases: * * * 3. A party to the action * * * for the non-payment of a sum of money, ordered or adjudged by the court to be' paid, in a case where by law execution can not be awarded for the collection of such sum; or for any other disobedience to a lawful mandate of the court.” (Judiciary Law, supra, § 753.) “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 it, and paid the fine imposed.” (Id. § 774.) A judgment is a mandate of the court. (Code Civ. Proc. § 3343, subd. 2.) The judgment entered in the above-entitled action establishes the right of plaintiff as against defendant to lateral support of a public street to the extent specified therein, and defendant’s disobedience to its requirements defeats, impairs, impedes or prejudices that right. It is proper, therefore, that defendant should be imprisoned until he obeys.

In addition thereto, “If an actual loss or injury has been produced to a party to an action * * * by reason of the misconduct proved against the offender, and the case is not one where it is specially prescribed by law, that an action may be maintained to recover damages for the loss or injury, a fine, sufficient to indemnify the aggrieved party, must be imposed upon the offender, and collected, and paid over to the aggrieved party, under the direction of the court.” (Judiciary Law, supra, § 773.) If we assume that the exception has no application, the evidence introduced upon plaintiff’s part as to the necessary cost of the fill is too vague and indefinite to afford a basis for measuring the extent of its loss or injury. Defendant Eckerson, however, states in his affidavit that the cost of the required fill will be at least $15,000, and so far as the amount of the fine is concerned, this might be adopted if the evidence showed any present loss or injury to plaintiff resulting from defendant’s failure to obey the provisions of the judgment in this regard. To affirmatively establish such actual loss or injury is essential. (Moffat v. Herman, 116 N.Y. 131; Socialistic Co-Operative Pub. Assn. v. Kuhn, 164 id. 473; Snow v. Shreffler, 148 App. Div. 422, 433.) It may be that plaintiff would have authority to go upon defendant’s land and make the prescribed fill for the purpose of abating a nuisance (2 Wood Nuis. [3d ed.] 1285), but it has not done so. Up to the present time it has expended nothing for that purpose. If the fine of $20,000 which has been imposed, and which was intended to represent the cost of the fill, was paid over to plaintiff, there is no certainty that it would he expended for that purpose. Because, therefore, there is no satisfactory evidence of actual present loss or injury to plaintiff, the order must be modified by striking out the provision for the fine of $20,000, and by making the provision for defendant’s imprisonment until compliance with the judgment absolute, instead of in the alternative to the payment of said fine; and as thus modified it should be affirmed, without costs.

Jenks, P. J., Thomas, Carr and Putnam, JJ., concurred.

Order modified by striking out the provision for the fine of $20,000, and by making the provision for defendant’s imprisonment until compliance with the judgment absolute instead of in the alternative to the payment of said fine; and as thus modified affirmed, without costs.  