§ 5105.Alternative enforcement of judgment or order.

This section is derived from subd 4 and 5 of CPA § 505. Subd 4, relating to payments into court, was introduced by the authors of the Code of Civil Procedure to change a result which had been reached under the Field Code provision on this subject. The latter, in § 285, simply provided:

“Where a judgment requires the payment of money, or the delivery of real or personal property, the same may be enforced in those respects by execution, as provided in this title. Where it requires the performance of any other act, a certified copy of the judgment may be served upon the party against whom it is given, or the person or officer who is required thereby, or by law, to obey the same, and his obedience thereto enforced. If he refuse he may be punished by the court as for a contempt.” Under that provision it was held in Gray v Cook, 24 How Pr 432 (NY Super Ct 1863), that a judgment directing an administrator to pay money into court “to await the further order of the court, and to be distributed according to law” must be enforced by execution, as it “requires the payment of money.” The authors of the Code of Civil Procedure, with this case in mind and desirous that execution should not supersede the remedy of contempt “in equitable cases of fraud and trust,” accordingly substituted for CPA § 285 the two §§ 1240 and 1241, that appeared as §§ 504 and 505 (except for subd 5 of § 505, which was added in 1947). See Code Civ Proc § 1241, note (Throop ed.

1881). Subd 4 of § 1241, designed to overcome the rule of Gray v Cook, allowed either contempt or execution where the judgment requires payment of money into court or to an officer of the court. The exception for money due upon a contract or as damages for non-performance of a contract is required by Civil Rights Law § 21 (formerly Code Civ Proc § 16), which prohibits imprisonment in such cases.

Subd 5 was added in 1947 upon recommendation of the Judicial Council to cover other cases of fraud and trust which did not come within subd 4 because they did not require payment into court or to an officer of court. At the same time, subd 4 was extended to receivers appointed by the court. See 13 NY Jud Council Rep 240–46 (1947).

It should be noted that both of these subdivisions are in apparent conflict with section 753(A) of the Judiciary Law, the general provision authorizing courts of record to punish for civil contempts. Subd 3 of that section allows contempt “for the non-payment of a sum of money, ordered or adjudged by the court to be paid, in a case where by law execution can not be awarded for the collection of such sum.” This section has generally been held to preclude punishment by contempt for disobedience to any judicial pronouncement where the remedy of execution is available. See Contempt-Execution Study at pp. 715–17, 722–23 infra.

Nevertheless, no question about the conflict has been raised and the provisions are given complete effect in the decisions. Accordingly, they have been retained in this section. For the sake of consistency, however, § 753(A)(3) of the Judiciary Law has been amended to take account of their existence. The words “except as otherwise specifically provided by the civil practice law and rules” has been inserted after “in a case where by law execution can not be awarded for the collection of such sum.”

Add, L 1962, ch 308, eff Sept 1, 1963.