
    Ida Greenberg, Respondent, v. Louis Polansky, Appellant, Impleaded with Morris Lipson and Others, Defendants.
    First Department,
    October 21, 1910.
    Contempt — specific performance — compliance with decree.
    A defendant cannot be adjudged in contempt of court for a failure to comply with a decree requiring him to perform specifically an agreement to execute a bill of sale of a certain business and to execute an assignment of a lease because he stated in the bill of sale that the goods had been seized by a city through its bureau of incumbrances and because the assignment contained a.statement that the lease had been annulled in summary proceedings for non-payment of rent, if such be the facts.
    Under the circumstances, the defendant complied with the decree in so far as he could do so,
    Such defendant cannot be • punished for contempt on the theory that he purposely defaulted in the payment of rent, if the judgment did not direct him to pay the same and he was dispossessed before the decree was entered. One cannot be punished for failure to comply with the judgment of the court unless such failure be established with reasonable certainty.
    Appeal by the defendant, Louis Polansky, 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 29th day of August, 1910, adjudging the said defendant guilty of contempt of court and imposing a fine.
    
      Charles Frankel, for the appellant.
    
      Jacob J. Schwebel, for the respondent.
   McLaughlin, J. :

The appellant, to enable him to purchase a laundry in the city of New York, borrowed $300 from the plaintiff. The laundry consisted, of certain personal property and a lease of real estate. Plaintiff claimed that Polansky, when he borrowed the money, agreed to give her as collateral security for the payment of the sum borrowed, a bill of sale of the personal property and an assignment of the lease. This he denied and she thereupon brought an action for specific performance. She was successful in the action and on the 16th of June, 1910, judgment was entered which decreed “that the defendants, and each of them, within five days after the personal service upon them of a certified copy of this decree, execute and deliver to the plaintiff a bill of sale of the laundry business located at' 203 Broome Street, Manhattan Borough, New York City, and also within said time, to execute and deliver to this plaintiff an assignment of the lease on the premises in which said laundry business is located.” On the day the judgment was entered a certified copy of it was served upon Polansky and four days later he executed and delivered to the plaintiff an assignment of the lease and also a bill of sale of the personal property referred to. The assignment contained a statement to the effect that the lease had been cancelled and annulled by a warrant in summary proceedings for the non-payment of rent,” and the bill of sale contained a statement that the chattels have been in the possession of the corporation of the City of New York and taken * * * through its Bureau of Incumbrances on or about the 1st day of April, 1910.” Both the assignment and the bill of sale were immediately returned on the ground that they did not comply with the judgment, and thereupon a motion was made to punish the defendant for a contempt for such failure.

On the hearing of the motion it appeared from the papers presented that the appellant was in fact dispossessed in summary proceedings for the non-payment of rent and removed from the premises by the city marshal on the 29th of March, 1910; that the personal property was at the same time removed and placed upon the sidewalk; it also appeared that on the same day the plaintiff’s attorney was notified by the appellant’s attorney that the. personal property had been placed on the sidewalk and that he would get his client to waive entry of judgment so that the plaintiff could have the property at once. No attention was paid to the notice and the personal property was subsequently removed from the sidewalk by the bureau of incumbrances, and, so far as appears, the same has since been held by such department.

Notwithstanding the foregoing facts, which were not disputed, the appellant was adjudged guilty of a contempt of court, for which a fine was imposed amounting to the plaintiff’s recovery, with costs, and in default of payment he was directed to be committed to the county jail of the county of New York,-to be there detained until such fine was paid or he was discharged according to law. The appeal is from that order.

I am unable to see any basis whatever for the order appealed from. The appellant did all that the decree directed him to do. He assigned the lease, or whatever interest he had in it, and transferred all the interest which he had in the personal property. This is all he could do. The fact that he included in the assignment a statement that he had been dispossessed of the premises leased and in the bill of sale that the property was in possession of the bureau of incumbrances did not affect those instruments because such statements in no way injured the plaintiff. The instruments transferred to her whatever right or interest the appellant then had and that is all the judgment directed him to do.

It is suggested that he purposely defaulted in the payment of the rent, to the end that he might be removed and thereby deprive the plaintiff of any benefit she might obtain under her judgment. The papers used upon the motion did not establish this fact. Besides, the judgment did not direct him to pay the rent and he was removed nearly two months before it was entered. One cannot be punished for failure to comply with a judgment of the court unless such failure be established with reasonable certainty. (Ketchum v. Edwards, 153 N. Y. 534.) He could not be punished for contempt for not doing what he did not have the power to do. (Matter of Wegman's Sons, 40 App. Div. 632; Watertown Paper Co. v. Place, 51 id. 633; Saal v. South Brooklyn Railway Co., 122 id. 364.) He could not give the plaintiff the assignment of a lease which entitled her to possession, because he did not have a lease which could be assigned, nor could he give her possession of the personal property called for by the bill of sale because that was held by the city.

The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion to punish for contempt denied, with ten dollars costs.

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

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