City of Syracuse v. Hogan (234 N. Y. 457) is a case in which the complaint cannot be distinguished in principle from that in the present case. The majority opinion of the court contains the following: “ It is suggested that the plaintiff cannot recover in this action all the relief to which it is entitled if it be held that it is in ejectment. I do not think this follows. * * * The judgment may be enforced by execution. (Code of Civil Procedure, sec. 1240; Civil Practice Act, sec. 504.) If it cannot be enforced by execution, then the defendant may be punished for contempt in refusing to comply with the judgment. (Code of Civil Procedure, sec. 1241; Civil Practice Act, sec. 505.)” Therefore, the plaintiff does not need the provision in the judgment which is here being criticised. His right to contempt proceedings follows not from that provision but as a matter of right from the fact, if such be the fact, that he cannot enforce his judgment by execution. There is no warrant in the law for the provision in question. Being unauthorized and also unnecessary for the protection of the plaintiff’s rights it may on the other hand be prejudicial to the defendant and should, therefore, be stricken out.
All concur, except Hinman, J., dissenting, with an opinion, in which McCann, J., concurs.