Opinion
May 8, 1908.
John Frankenheimer, for the appellants.
No appearance for the respondent.
On the 12th day of November, 1907, judgment was duly entered herein pursuant to a decision on the trial of the issues at Special Term. The judgment commands the defendants to commence within ten days after service of a copy of the decision and judgment and notice of entry thereof to reduce a certain chimney to its former height and condition; to remove the pieces or fragments of brick and mortar in the flues of said chimney; to repair and restore the concrete foundation of a certain party wall between the premises of plaintiff and defendants; to render the party wall stable and safe and sufficiently strong to bear the weight imposed on it; to repair the cracks in the walls and ceilings of all the rooms of plaintiff's house and remedy the condition of the doors, windows and floors thereof therein described and to continue all of said work and to fully complete the same within ninety days after commencing the same.
In subdivision "Eighth" of the judgment it is provided that in the event that the defendants do not commence and complete said work within the respective times within which they are directed to commence and complete it, plaintiff "recover from the defendants" the sum of $4,000 in addition to the sum of $374.90, her costs and disbursements, for which she is awarded judgment in subdivision "Seventh" of the judgment, and that she have execution against the defendants "accordingly." The last paragraph of the judgment gave defendants twenty days' stay of execution on the judgment. The judgment contains no express provision requiring a further application to the court by plaintiff showing default on the part of the defendants to render the judgment for the $4,000 effective or to authorize the issuance of execution thereon.
The motion was based upon proof by affidavit showing an attempt in good faith by defendants to comply with the judgment within the time required and that, as is manifest, part of the work can only be performed from plaintiff's premises and that she refused admission thereto on due demand for the purpose of complying with the judgment. It is unnecessary to decide whether the court has authority by order to compel plaintiff to suffer the defendants, their agents or servants to enter upon her premises to perform the work which the defendants by the judgment — presumably at the request of plaintiff — are directed to perform for complete protection to the defendants against the technical default, which plaintiff's conduct is calculated to produce, may be otherwise afforded. The point now presented was not involved in the decision. It arises on the enforcement of the decree and, therefore, the court has inherent power to protect the defendants either by adding an appropriate provision at the foot of the decree or by staying the operation of the judgment and the running of the time within which defendants are required to commence and complete the work until such time as plaintiff affords the defendants reasonable opportunity to perform the work. ( Duclos v. Benner, 6 N.Y. Supp. 294; King v. Barnes, 51 Hun, 551; affd., 113 N.Y. 476; Rauth v. N.Y. El. R. Co., 23 N.Y. Supp. 750; Clark v. Hall, 7 Paige, 382.) The decree should have expressly provided for the contingency which has arisen, but evidently it was not foreseen and the question now arising was not litigated. We are of opinion that it is not necessary to amend or add to the decree, although if necessary this might be done with respect to the time of complying therewith. ( Adams v. Ash, 46 Hun, 105; Conklin v. N.Y. El. R. Co., 13 N.Y. Supp. 782.) We think that the appropriate order to afford protection to defendants is a stay of the operation of the 8th clause of the judgment and of the time prescribed for the judgment for $4,000 becoming effective and enforcible by execution and of the issue of execution thereon until plaintiff formally notifies defendants of her readiness to afford them access to her premises at all reasonable hours for the purpose of performing the work requiring such access for its performance and until ninety days after she remains ready and willing to afford them such access after such notice, and affords such access if they apply therefor after such notice from her.
It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted as herein indicated, with ten dollars costs.
INGRAHAM, CLARKE, HOUGHTON and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted as indicated in opinion, with ten dollars costs. Settle order on notice.