Weissenburger v. Williams , 142 N.Y.S. 1027 ( 1913 )

Emery, J.

In the month of March, this year, the plaintiffs procured a judgment against the defendants, which reads as follows, after the formal recitals:

“ Ordered, Adjudged and Decreed that the agreement set forth in the complaint in this action and duly proven upon the trial be specifically performed; that the defendants and each of them receive and’accept the deed of conveyance heretofore tendered to them July 11th, 1912, and pay plaintiffs upon delivery or tender of said deed the sum of $1,350 together with interest thereon from July 11th, 1912; it is further

“ Ordered, Adjudged and Decreed, that if the defendants refuse to receive and accept said deed the plaintiffs file the same with the Clerk of this Court; that upon such delivery or filing the defendants pay plaintiffs, or their attorney, the purchase price, to wit; $1,350 together with interest thereon from July 11, 1912, and the sum of $10l7.8i5 costs of this action and that they have execution therefor. ”

And this is the return of an order requiring the defendants to show cause why they should not be punished for their failure to comply with the directions contained in the judgment.

The counsel for plaintiffs urges that this is the remedy, and cites the court to section 756 of the Judiciary Law in support thereof.

There is no absolute or unqualified direction in the judgment that the defendants shall receive and accept the deed, as it is also provided that if they should refuse to do so, the deed shall be filed with the clerk of the court, and that upon such delivery or filing the defendants shall pay the amount of the judgment, and that plaintiffs shall have execution therefor.

The affidavit states that the deed was tendered and a demand made for payment of the judgment, which defendants refused because they did not have the sum of $1,350 to pay for the property.

We do not understand that plaintiffs’ counsel seeks to punish the defendants on account of their refusal to receive the deed, but rather because of their refusal to receive and accept it and pay the money as directed in the judgment. Besides the direction is in the alternative, that the deed shall be filed in case of such refusal to accept. The only remedy provided for the collection of a suin of money directed to be paid by judgment is by the issuing of an execution therefor, and that is just what this judgment provides. Judiciary Law, § 753, subd. 3; Code Civ. Pro., §§ 1240, 1241..

In an action for specific performance, the judgment directed defendant to accept the deed tendered, pay a certain sum of the purchase price and execute a bond and mortgage for the balance. It was held that defendant could not be punished as for contempt in refusing to pay the money, but only for a refusal to execute the bond, etc., which he was willing to do; that the only remedy was to issue execution on the judgment for collection of the money directed to be paid. Kittle v. Stueve, 11 Misc. Rep. 279; affd., 146 N. Y. 380.

This decision has never been doubted or questioned; and it is cited in Potter v. Rossiter, 109 App. Div. 36.

The motion for an order directing that the defendants be punished must be denied.

Motion denied, with ten dollars costs of motion.