#### Mrs. Frank Leslie, Plaintiff, *v.*The Saratoga Brewing Co. et al., Defendants. Matter of the Application to Commit Daniel Gaffey for Contempt.

(Supreme Court, Albany Special Term,

November, 1900.)

Contempt — Order, requiring defaulting purchaser in foreclosure to pay the diiierence between his bid and the price at the resale, enforcible as a judgment but not as a civil contempt — Code C. ¡P., §§ 14, subd. 3, 779, 8268.

An order, requiring a purchaser who defaulted upon his bid at a sale in foreclosure to pay the difference between his bid and the price secured at a resale, cannot be enforced as a contempt where he has failed to comply with the order, although apparently able to do so.

*Senible,*that such an order should be entered as a judgment, in the same manner as an order for a deficiency, and should thereafter be enforced by execution.

A judgment of foreclosure and sal© was obtained in the above-entitled action, and pursuant to such judgment the premises were *119exposed for sale on. the 13th day of November, 1899. At that time, Daniel Gaffey, through his attorney, hid in such premises for the sum of $21,600, he being the highest bidder therefor. After having hid in the same, the said Daniel Gaffey declined and refused to comply with the terms of the sale, whereupon and pursuant to such terms of sale, said premises were again exposed for sale by the referee, whereupon they were sold for the sum of $18,100. That thereafter, upon application being made to the court, and on the 10th day of March, 1900, an order was made directing Daniel Gaffey to pay over to the referee the sum of $2,900, with interest thereon from the 23d day of November, 1899, bring the difference between the sum at which the premises were struck down to him, and that for which they were sold upon the resale. And it was further ordered that, in case of the failure of the said Daniel Gaffey to make such payment after the service of the order, the moving parties might proceed to punish the said Daniel Gaffey as for a contempt.

That thereafter, and pursuant to such order, an attachment as for a contempt was issued against the person of said Daniel Gaffey. A motion was made at a Special Term of this court to vacate such attachment, and, by consent of the attorneys of the respective parties, such motion is now brought on to be heard at this Special Term.

John T. Norton for motion.

J. Ne'wton Fiero opposed.

Herrick, J.

All questions as to regularity are waived by.the attorneys to these proceedings, and the sole and -only question submitted to me is, as to whether an order for the payment of the difference in the purchase price of property, under the circumstances above detailed, can he enforced against a defaulting purchaser by proceedings as for a contempt.

These proceedings, which deprive a person of his liberty and confine him to close custody, are dependent upon the statute regulating contempts, and such statute must he strictly construed in favor of the liberty of the citizen. They are intended to protect the power and dignity of the court, and are not to he used to enforce the collection of damages, or the payment of debts, as such.

The Code of Civil Procedure, section 14, provides that “ A court *120of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in either of the following cases. * "" 3. A party to the action or special proceeding, an attorney, counsellor, or other person, 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 cannot be awarded for the collection of such sum; or for any other disobedience to a lawful mandate of the court. ”

This subdivision defines the cases where an order for the payment of money may be enforced by proceedings as for a contempt. The moving party in these proceedings, however, claims to proceed under section 2268 of the Code of Civil Procedure, which reads as follows: “ Where the offense consists of a neglect or refusal to obey an order of the court, requiring the payment of costs, or of a specified sum of money, and the court is satisfied, by proof, by affidavit, that a personal demand thereof has been made, and that payment thereof has been refused or neglected; it may issue, without notice, a warrant to commit the offender to prison, until the costs or other sum of money, and the costs and expenses of the proceeding, are paid, or until he is discharged according to law.”

It is claimed that this section authorizes proceedings as for a contempt, to enforce the payment of any money, directed to be paid by order of the court.

I think this is a misapprehension of'the intent of the last-quoted section; it is not a definition of cases in which proceedings as for a contempt may be taken, but is simply the proceeding provided for enforcing, in appropriate cases, the contempts defined in section 14, as is apparent by reading section 2266. It is claimed, however, that section 2268 is not only a method of procedure, but also a statement of the cases in which such procedure may be taken, and, in support of that contention, reference is made to section 779 of the Code of Civil Procedure, as authority for that construction.

Formerly, the method of enforcing the payment of costs upon an order was by staying all proceedings upon the part of the party against whom such costs were awarded, until they were paid. In 1882, section 779 was amended so as to provide for enforcing the *121payment of such costs by execution, as well as by staying the proceedings, but such provision referred only to costs. In 1884, such section was amended by inserting the words, “ or any other sum of money,” so that it provides “ That where costs of a motion, or any other sum of money, directed by an order to be paid,” etc. That the payment of such costs or sum of money may be enforced by execution; but the same amendment added to the section the foEowing clause: “ But nothing herein contained shall be so construed as to relieve a party or person from punishment as for contempt of court for disobedience to an order in any case when the remedy of enforcement of such proceeding now exist.” And it is claimed that not only is this a preservation of a then existing right to enforce by proceedings as for contempt, the payment of money other than costs, directed by an order of the court to be paid, but that it is equivalent to a declaration that such right then existed.

This requires us, then, to examine whether, prior to the amendment of 1884, an order for the payment of money was enforceable by proceedings as for a contempt.

The provisions of the Code, section 14, subdivision 3, and section 2268, are very similar to the provisions of the Revised Statutes, part 3, chapter 8, title XIII, section 1, subdivision 3 (2 Edm. R. S. 553), which provides as follows: “Every court of record shall have power to punish,” etc. Subdivision 3. “Parties to suits, attorneys, counsellors, solicitors and all other persons, for the non-payment of any sum of money ordered by such court to be paid, in cases where by law execution cannot be awarded for the coEection of such sum; and for any other disobedience to any lawful order, decree or process of such court.”

Section 4 provides as foEows: “ When any rule or order of a court shall have been made for the payment of costs, or any other sum of money, and proof, by affidavit, shall be made of a personal demand of such sum of money, and of a refusal to pay it, the court may issue a precept to commit the person so disobeying to prison, until such sum, and the costs and expenses of the proceeding, be paid.”

These sections have been passed upon by the court in the case of Myers v. Becker, 95 N. Y. 486, and the court, after setting forth both sections, referred to section 4 as follows: “ This section must be construed in harmony with the prior provision cited, *122and authorizes the precept mentioned only in cases where an execution cannot he issued. It does not, therefore, apply to a ease where money has been ordered to be paid by a final judgment, and so it has been uniformly held.” Citing a number of cases.

One of the cases cited is Matter of Watson v. Nelson, 69 N. Y. 536, which was a case of disobedience of a surrogate’s decree or order directing the payment of money generally, not out of a specific fund, by an executor, to the persons interested in the estate, where, after discussing the various provisions of the statute in relation to contempts, the court said: “We have been referred to no case, and I have found none since the Revised Statutes, in which disobedience of a decree or order merely directing the payment of money by an executor, trustee or other party has been adjudged to be a contempt, for which a fine could be imposed and the party committed, as for a criminal contempt, to close custody. It was the object of the enactments as proposed by the revisers and adopted by the legislature, to distinguish between the two classes of cases; and, while they preserved the necessary powers of the courts to maintain their own dignity and punish all willful disobedience or contumacy,. not to allow even the Court of Chancery to visit a mere failure to pay a sum decreed, with more severity than was allowed to the courts of law, Whatever may have been the origin of the debt.”

I can see no reason for giving a different construction to the section of the Code from that given to similar sections of the Revised Statutes.

A distinction is made between an order for the payment of a sum of money generally, and where an order is made for the payment of a specific fund, which is in the possession of or under the control of the person against whom the order is made, this latter order being enforceable by proceedings as for a contempt, and not by execution.

And when such distinction is borne in mind, all seeming conflict between subdivision 3 of section 14 and section 2268 of the Code of Civil Procedure disappears.

The appropriate procedure seems to be, where an order is made for the payment of money generally, as in the case of Myers v. Becker, *supra,*to enter a judgment thereon, and to issue an execution upon the judgment, and where money can be collected in that way, proceedings for contempt cannot be taken.

*123No question is raised here as to the liability of a defaulting bidder to pay the difference between his bid and the amount for which the premises are sold upon a resale, but I have been referred to no case, and have been unable, by my own research, to find one which defines the practice to be pursued in enforcing that liability.

The bidder, by his action, has made himself a party to the proceeding or action in which the sale is made, and a proceeding against him to enforce his liability upon his bid must be taken in such action or proceeding.

“ It is a familiar principle that any one who interferes *pendente lite*"with the subject-matter of a suit in equity, submits himself to the jurisdiction of the court, to be exercised by petition or motion in the original suit, and that he acquires no- rights in that manner which may not he modified, controlled or directed, without any new proceeding directly against him.” Proctor v. Farnam, 5 Paige, 614; Cazet v. Hubbell, 36 N. Y. 677; Andrews v. O’Mahoney, 112 id. 567; Archer v. Archer, 155 id. 415.

And, pursuant to that doctrine, the court, in the case of Miller v. Collyer, 36 Barb. 250, refused to maintain an action against a defaulting purchaser, holding that the proper remedy was an application to the court to compel him to complete it or resell the property, and hold him liable for the loss and additional expense.

The determination, by motion or otherwise, made in the principal action, of his liability and its extent, would be a final determination of the rights of the parties, and, within the Code, section 1200, a judgment.

“ A judgment is an adjudication of the rights of the parties in respect to the claims involved.” McMulty v. Hurd, 72 N. Y. 519.

And an order so made could be entered up in the final judgment in the same manner that an order for the payment of a deficiency, arising upon the sale by mortgage foreclosure, is entered up against the party liable therefor in the final judgment, and upon a judgment so entered an execution can be issued. Such seems to me to be the proper practice.

That proceedings as for a contempt cannot be taken to enforce an order for the payment of money generally has been held since the amendment of 1884 to section 779 of the Code of Civil Procedure, in Matter of Hess, 48 Hun, 586. See also Betz v. Buckel, 30 Abb. N. C. 278; Forstman v. Schulting, 42 Hun, 643; Halsted *124v. Halsted, 21 App. Div. 466; Cohu v. Husson, 25 N. Y. St. Repr. 811.

The case of Andrews v. O’Mahoney, *supra,*has been cited to me, to the effect that proceedings as for a contempt can be taken in cases of this kind. The court there said of the purchaser at such sale that *“*By bidding he submits himself to the jurisdiction of the court, and in effect becomes party to .the proceeding, and he may be compelled to complete his purchase by an order of the court and by its process for contempt, if necessary ”.

In that case, no order had been made holding the purchaser liable for any difference between the sum realized on the second sale, and that bid upon the first. There had been no second sale; an application to the court had been made to compel the purchaser to complete his purchase.' There was no adjudication making him liable for a sum of money, as in the ease before us; no request for'such an adjudication; no order had been asked for or made holding him liable for any sum of money. Again, what was said by it in reference to proceedings for contempt was *obiter,*as that question was not then before the court.

The attachment should be vacated.

Attachment vacated.