
    THE PEOPLE on the relation of DAY against BERGEN.
    
      Court of Appeals ;
    
    December, 1873.
    Judicial Sale.—Duties of Referee.
    Under the usual judgment for sale in foreclosure,—directing the referee or other officer making sale, after paying his own fees and expenses of sale, and all liens for taxes, assessments and prior mortgages, to pay from the residue, the costs and the mortgage debt,—if the referee pays the sums awarded out of the residue, before paying off the liens, he does so at his peril.
    It is the referee’s duty to pay off liens as directed by the judgment; and he cannot relieve himself of this duty by stipulations in the terms of sale.
    Although the terms of sale permit the purchaser to pay off the liens, , and retain the sum out of the purchase money, he is not bound to do so, but may pay the whole price and require the referee to execute the judgment.
    
    If the purchaser claims that he has paid off admitted prior liens, and tenders the balance of the purchase money, an objection to the sufficiency of the proof of the payment must be made by the referee, if at all, at the time of the tender.
    If the referee refuses to pay off or allow such prior liens, the court may compel him to do so.
    It is no defense to proceedings to punish for contempt in disobeying an order, that an appeal is pending  (there being no stay); nor is the fact of the party’s inability an excuse, where it was caused by his own disobedience.
    
      On appeal from an order punishing for contempt, the appellate court cannot consider new affidavits alleging that the party has meanwhile complied with the order of the court below.
    In. the case of Easton v. Pickersgill, the supreme court gave judgment of foreclosure of a mortgage, and for the sale of the real property affected thereby ; and appointed the defendant in the present proceeding a referee to execute the judgment. There was a prior mortgage on the premises, and unpaid taxes, &c.
    The terms of the judgment required that “ out of the moneys arising from such sale, after deducting the amount of his fees and expenses on such sale, and any lien or liens on said premises so sold, at the time of such sale, for taxes, assessments or prior mortgage,’’’ the said referee pay, &c., the costs of the parties and the sum due on the mortgage under foreclosure, &c.
    At the sale, on May 3, 1872, the relator bid off the premises for seven thousand six hundred dollars, and paid ten per cent. The terms of sale, which the relator signed at the auction, did not refer to the judgment. They required the residue of the purchase money to be paid to the referee without notice or demand ; and provided that “all taxes, assessments, and .incumbrances which at the time of sale are liens or incumbrances on said premises, will be allowed by the referee, out of the purchase money ; provided the purchaser shall, previous to the delivery of the deed, produce to the referee proof of such liens, and duplicate receipts for the payment thereof.”
    On July 19 the relator paid to the referee four thousand one hundred and eighty-seven dollars and fifty-six cents, reserving in his own hands enough to pay the prior mortgage which the terms of the decree directed the referee to pay.
    Meanwhile the prior mortgage was foreclosed by suit, and the relator thereupon paid to the creditor the amount due thereon with the costs, and deducting the whole from the purchase money due to the referee in the first suit, tendered the balance. The referee refused to allow the deduction of the costs ; and he declined to pay off the taxes, &c., on the ground that it was not his duty to search for taxes, &c., nor to pay them off, but the relator was. bound by the terms of sale.
    On application, the supreme court, on Dec. 20, 1872, directed the referee to apply the money in his hands to extinguish the taxes and assessments which were a lien at the time of sale, and sustained him in refusing to allow the costs of the second foreclosure, and ordered him to apply the money in his hands to the payment of the .tax liens, and to give the relator a deed, on the latter tendering the sum he had withheld for costs, and producing certified copies of the tax bills.
    The referee took an appeal from this order and obtained a stay of proceedings. The relator obtained from a judge at special term an order modifying the stay so far as to allow the relator to make a tender and demand, and to apply to the court on motion thereupon. The referee not complying with the order, the court ordered him to show cause why he should not be punishedfor contempt, and on the return of the order to show cause, the court directed that the motion be held under advisement on condition that the referee forthwith pay into court the money in his hands, and deliver a deed. This condition the referee complied with.
    The court - subsequently adjudged him guilty of contempt in not paying off the taxes, &c., and imposed a fine of one hundred and fifty dollars, and ordered that he be committed, &c.
    
      The supreme court, at general term, on appeal affirmed this latter order, but with leave to the referee to obtain a repayment of moneys he had paid over to plaintiff, and of others he had paid into court, and pay off the taxes, &c., on doing which he should have a perpetual stay of the precept.
    Prom this order the present appeal was taken.
    
      Samuel the appellants.
    
      Albert Day, in person.
    
      
       S. P., Morange v. Morris, 3 Abb. Ct. App. Dec., 314. Otherwise held where it did not appear that the. judgment required the referee to pay off the liens (Lenihan v. Hamann, 14 Abb. Pr. N. S., 274). Where the mortgagees were at hand, and ready to receive the money, and satisfy the mortgage,—Held, that the purchaser was not discharged by the referee not having paid it (Herbert v. Smith, 6 Lans., 493).
    
    
      
       Compare State v. Carlan, 2 Sandf., 738; Leland v. Smith, 3 Daly, 309; and, as to the case of an appeal from a judgment, Howe v. Searing, 10 Abb. Pr., 264; S. C., 6 Bosw., 354.
    
   By the Court.—Allen, J.

The duties of the defendant as referee for sale of the mortgaged premises, under the judgment of foreclosure, were ministerial in their character, and a slight attention to the terms of the judgment would have prevented any controversy.

The duty of the referee was to sell the premises to the highest bidder, and after receiving the purchase money to pay therefrom his own fees and expenses on such sale, and then all liens upon said premises, existing at the time of the sale “for taxes and assessments, or prior mortgage,” and from the residue pay the costs awarded to the several parties and the amount reported due the plaintiff, with the interest thereon, or so much thereof as the purchase money of the premises would pay of the same.

Such are the plain directions of the judgment, and if without or before paying the prior liens he has paid the plaintiff, and the other parties, the amounts awarded to them, he has done so at his peril and in his own wrong. The terms of the sale could not vary the judgment or relieve the referee .from the performance of h! duties. They did not assume to do so in this case. The fourth clause of the terms of sale permits the purchaser to substitute the payment of prior liens for money, pro tanto, in his settlement with the referee and payment of the purchase price. .But if the purchaser elects to pay the money, take his deed and hold the referee to the proper execution of the judgment, he may do so.

It is true that here the purchaser did not assume this position, and it is now objected that the referee had no sufficient evidence of the prior mortgage or its payment by the relator. The answer to this is that the existence and valdity of the mortgage or its actual payment are not controverted, and the objection to the sufficiency of the evidence of either fact was not taken at the time of the tender of the balance of the purchase money and the demand of the deed. The relator does not claim to have paid the lien, by taxes and assessments, and they are to beascertained and paid by the referee.

The order of December 20, 1872, was in accordance with and execution of the judgment under which the premises were sold, and was within the jurisdiction of the court. If it was improvidently or erroneously granted, the remedy of the party aggrieved was by application to vacate it, or by appeal. It is not void and it cannot be reviewed upon an application to punish for a disobedience of it; so long as it remains in force the duty of all parties is to obey it; and the merits of the order are not reviewable (People v. Sturtevant, 9 N. Y. [5 Seld.], 263 ; Sullivan v. Judah, 4 Paige, 444; Higbie v. Edgerton, 3 Id., 253). Neither is it a defense in proceeding to punish for a contempt that an appeal has been taken from the order. If the proceedings have not been stayed, the party has a right to take every step for the enforcement of his civil remedy, that he might if no appeal was taken. In this case, the proceedings are not stayed, but the relator has, by express permission of the court, the privilege of making such application under the order as his counsel may advise. It is no objection to the order of the special term adjudging the defendant in contempt, that the court suspended final action for a brief period to enable the defendant to comply with the original order, or perform any act .as a substitute for such compliance.

That was an act of grace to the defendant, which did not deprive the court of jurisdiction or prevent a final decision of the motion upon the merits. The defendant cannot complain that an opportunity was given him to purge the alleged contempt. The disobedience of the order, was clearly established, and if there was any disability on the part of the defendants-to comply with the order, it was the result of his own act, in disregarding the terms and directions of the judgment, and he cannot avail himself of bis own acts to justify a disobedience of the orders of the court, of which he was an officer.

An affidavit is annexed to the record, but which, in the nature of things, can make no part of the return to ■ the appeal, to the effect that after the making of the order at special term, which is the subject of the appeal, the defendant did comply with the suggestions of the court, made upon suspending the final decision. If this were so, and the defendant had any claim founded upon such action, to be absolved from, the-contempt, he should have applied for relief to the court.

He cannot have the benefit of such action upon an appeal from the order punishing him for contempt. That must be disposed of upon the papers before the court below.

The order must be affirmed.

A majority of the judges concurred. 
      
       The appellant moved for a reargument, which was denied.
     