OPINION OF THE COURT
Silverman, J.Petitioner appellant Clinton W. Blume, Jr., individually (hereinafter appellant) has been adjudicated to be in criminal and civil contempt for the same misconduct, and has been sentenced to definite terms of imprisonment of 30 *239days for the civil contempt and 25 days for the criminal contempt, sentences to run concurrently.
This contempt proceeding and these sentences are based on the failure of appellant, a landlord of residential premises, to remedy or make any effort to remedy violations relating to the habitability of the premises despite orders of the court directing him to do so.
We affirm as to the criminal contempt.
Although the property was held in the name of a corporation, it is clear that the corporation was, as appellant himself said, “just a name to hold the property”. It had no bank account. Such financial transactions as took place were treated as appellant’s individual transactions. During the period of the alleged contempt, May 13, 1981 to November 4, 1981, he was in sole control of the property, the managing agent having resigned. He was president and sole stockholder of the nominal owning corporation. He was clearly an “owner” within the statutory definition of subdivision 44 of section 4 of the Multiple Dwelling Law and subdivision 45 of section D26-1.07 of the Administrative Code of the City of New York, being a person “ ‘directly or indirectly in control of a dwelling’ ”. (Housing & Dev. Admin, v Johan Realty Co., 93 Misc 2d 698, 700.) Pursuant to CCA 110 (subds [c], [d]), he was added as a party to this summary eviction proceeding. The order of May 13, 1981, for violation of which he was held in contempt, is explicitly directed to him by name, and contains an explicit warning that failure by him to correct the violations listed would subject him (as well as the corporation) to the contempt power of the court.
The court (114 Misc 2d 896), applying the standard appropriate to criminal proceedings, proof beyond a reasonable doubt, found that he willfully violated the order and was thus in criminal contempt.
The punishment for the civil contempt however, presents some rather perplexing problems. Before the contempt hearing and imposition of the punishments, an administrator was appointed under RPAPL 778, so that thereafter and continuing to this date appellant has been without power to remedy the violations or do anything in relation to the premises. The incarceration is avowedly simply *240punitive, for the purpose of punishing the appellant. It is not coercive, i.e., in the sense of coercing the appellant to comply with the order or remedy the damage caused by his contempt.
Imposing a civil contempt sanction as a solely punitive measure is in a sense an aberration from the generally recognized distinction between criminal and civil contempt and the function of civil contempt. As the Court of Appeals recently said: “Civil contempt has as its aim the vindication of a private right of a party to litigation and any penalty imposed upon the contemnor is designed to compensate the injured private party for the loss of or interference with that right (State of New York v Unique Ideas, 44 NY2d 345). Criminal contempt, on the other hand, involves vindication of an offense against public justice and is utilized to protect the dignity of the judicial system and to compel respect for its mandates (King v Barnes, 113 NY 476). Inasmuch as the objective is deterrence of disobedience of judicial mandates, the penalty imposed is punitive in nature” (Matter of McCormick v Axelrod, 59 NY2d 574, 582-583; italics added). Consistently with this distinction subdivision 1 of section 774 of the Judiciary Law provides with respect to civil contempt: “Where the misconduct proved consists of an omission to perform an act or duty, which is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it, and paid the fine imposed”.
Where it is in the power of the offender to perform the act directed, it is immaterial that he may be imprisoned for a long time, for he has it in his power to perform the act ordered. “If imprisoned, as aptly said in In re Nevitt, 117 Fed. Rep. 451, ‘he carries the keys of his prison in his own pocket.’ He can end the sentence and discharge himself at any moment by doing what he had previously refused to do.” (Gompers v Bucks Stove & Range Co., 221 US 418, 442.) In the Gompers case (supra, p 444) the Supreme Court said that a wholly punitive sentence can be imposed only in a proceeding instituted and tried as for criminal contempt.
But subdivision 1 of section 774 of the Judiciary Law goes on to provide that “In every other case” there may be a *241sentence of imprisonment not exceeding six months and until the fine, if any is paid, i.e., if the offender cannot perform the act ordered, he may still be imprisoned for up to six months. That is the authoritative interpretation of section 774 of the Judiciary Law and its predecessors.
In People ex rel. Munsell v Court of Oyer (101 NY 245, 247-248) the court, discussing the predecessor statute to section 774 of the Judiciary Law, said with respect to punishment for civil contempt: “The imprisonment, where the act or duty can yet be performed, must end with the performance of the act and payment of the fine; but if the act or duty cannot be performed, then the imprisonment must not exceed six months and until the fine be paid. In this last provision there is a trace of the element of punishment, but it is for the violation of the private right of the party and to check similar violations in the future, and has no respect to public offenses or the vindication of public wrongs.” (Accord King v Barnes, 113 NY 476, 480-481; Stewart v Smith, 186 App Div 755, 759; Wides v Wides, 96 AD2d 592, 594; Ditomasso v Loverro, 242 App Div 190, 194.)
We do not think the language we have quoted from Matter of McCormick v Axelrod (supra) can fairly be read to overrule this established interpretation of section 774 of the Judiciary Law as permitting a wholly punitive sentence of imprisonment up to six months in civil contempt where it is no longer within the offender’s power to comply with the original direction.
The result however, particularly in the comparison between criminal contempt and civil contempt, is incongruous. For criminal contempt the maximum period of imprisonment is 30 days (at least in contempt proceedings under the Judiciary Law) (Judiciary Law, § 751, subd 1). For civil contempt, where it is no longer within the power of the offender to perform so that the sentence is punitive, the imprisonment may be up to six months. In the ordinary meaning of the terms, a “criminal” offense is a graver offense than a civil offense and should be punished more severely. Again, “the element which serves to elevate a contempt from civil to criminal is the level of willfulness *242with which the conduct is carried out”: (Matter of McCormick v Axelrod, 59 NY2d, at p 583.)
Criminal contempt must apparently be proved beyond a reasonable doubt. (Gompers v Bucks Stove & Range Co., 221 US, at p 444; Bloom v Illinois, 391 US 194, 205.) Civil contempt requires proof “with reasonable certainty”. (Matter of McCormick v Axelrod, supra, at p 583; Matter of Hynes v Hartman, 63 AD2d 1, 3-4.)
We note also that serious doubt has been cast upon the constitutionality of the provisions of section 774 of the Judiciary Law insofar as they permit sanctions in civil contempt proceedings that “are neither remedial nor coercive, but punitive.” (Vail v Quinlan, 406 F Supp 951, 960, revd on other grounds sub nom. Juidice v Vail, 430 US 327.)
In the circumstances, we think the extraordinary power — extraordinary even for contempt cases — to impose wholly punitive sanctions for civil contempt should be exercised only very cautiously and where the necessity is clear. In the present case, where the court found appellant guilty of criminal contempt and imposed almost the same sentence upon him for civil contempt as it thought appropriate for criminal contempt, we think it was an improper exercise of discretion to impose a wholly punitive sanction of imprisonment for the civil contempt.
To begin with, we are unable to appreciate the nice calculus by which the court was able to say that the appropriate penalty for the same acts was 25 days imprisonment considered as a criminal contempt, and 30 days imprisonment considered as a civil contempt.
As the trial court found appellant guilty of criminal contempt, applying the appropriate standard of proof beyond a reasonable doubt, and thought the appropriate punishment for the criminal contempt was substantially the same as that for the civil contempt, we do not see what useful purpose was served by imposing the punitive sentence for civil contempt.
The court was exercising an aberrant and extraordinary provision of the statute, whose constitutionality has been seriously challenged, in a case where there was no neces*243sity to do so because the criminal contempt punishment was available and appropriate. The punitive sentence for civil contempt was thus an abuse of discretion in the circumstances. (See Matter of Planning Bd. v Zoning Bd. of Appeals, 75 AD2d 686, 687.)
Order, Supreme Court, Appellate Term, First Department, entered October 29, 1982 affirming order of New York City Civil Court, County of New York, Housing Part (K. B. Glen, J.), entered July 1,1982 adjudging petitioner-appellant Clinton W. Blume, Jr., individually to be in both criminal and civil contempt, and directing his commitment for 30 days on the civil contempt and 25 days on the criminal contempt, to run concurrently, should be modified, on the law and the facts, and in the exercise of discretion, to the extent of reversing and vacating the commitment for civil contempt, and the order otherwise affirmed, without costs.