Klein v. Wegman

BARNARD, P. J.

The plaintiff and defendant were owners of adjoining property. The defendant erected his building so as to encroach on the plaintiff’s premises. The plaintiff commenced an-action to restrain the encroachment, and procured a decree that the defendant was required to remove the encroachment within 20 days-after service of a certified copy of the judgment, and in accordance-with its directions. The defendant has not done so. Upon an application to the court to punish him for his contempt, the defendant made no appearance, and an order was made adjudging him guilty and imposing a fine, and directing his confinement in close custody until he obey the judgment. The defendant made application to open this default, and this was denied. The appeal is from this-order. The order was right. The affidavits excuse, by alleging-that the encroachment is slight; that the defendant has sold his property, and the purchaser will not let the defendant enter upon it to comply with the judgment; that the plaintiff will not permit Mm to enter upon his property for the same purpose. The defendant has given a bond to indemnify his vendee against the encroachment, and the plaintiff, although he refused at first, notified the defendant, before these proceedings were commenced, that he could enter on his land to remove the encroachment. The extent of the-same is not material. If it was so considerable as to be valuable ■enough to take, and the judgment ordered its removal, the defendant owes obedience to the judgment. If the papers read, upon the motion to open the default had been read on the motion to punish for contempt, they would furnish no defense for the disobedience of the judgment. A motion to set aside the default would be reached on the merits. The defendant does not seem to be willing to obey the judgment. He put up the house in defiance of the pending suit to restrain it; when sold, gave a bond to justify the obstrfiction; and then asserts that the purchaser from him will not let him do so. The order should be affirmed, with costs and disbursements. All concur.