New Parkway Vistas, Inc. v. Ginsburg

258 A.D. 1089, 18 N.Y.S.2d 4, 1940 N.Y. App. Div. LEXIS 8993

Opinion

Appeal by the defendant from an order dated June 28, 1939, adjudging her guilty of and punishing her for willful contempt. Order modified by striking from the fifth ordering paragraph, subdivision (b), the words “ which may be necessary to provide for plaintiffs a travelled way, street or highway over which safe and continuous passage may be afforded of,” and inserting in lieu thereof the words “ and restore said area to the same condition that it was in prior to the date the defendant took possession thereof for.” As so modified, the order is affirmed, without costs. The judgment directed only the removal of obstructions placed by the defendant within the confines of Oak Lane as delineated on map No. 4026. In our opinion the fair import of the language struck out placed the burden upon the defendant to make the street safely passable regardless of its prior condition. This relief was broader than the judgment warranted. However, it was the duty of the defendant to obey that part of the mandate of the court that was justified by the judgment. Her failure to do so was a contempt for which the court could punish her. The appeal from order dated October 27,1939, denying motion to vacate the order adjudging the defendant in contempt is dismissed, without costs. Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ., concur.