
    Henry Leerburger, Appellant, v. Henry E. C. Watson, as Executor, etc., of William Watson, Deceased, Respondent.
    First Department,
    July 9, 1915.
    Contempt of court—failure of vendee to comply with decree of specific performance — failure of vendor to put vendee in default by tendering conveyance, etc. — form of order of commitment — payment of purchase price.
    Where a. decree required a vendee of real property to complete his contract to purchase by paying to the vendor within ten days the balance of .the purchase' money, and upon receiving the defendant’s deed to execute and deliver simultaneously a purchase-money mortgage for a specific amount, and provided that in the event of any dispute as to the form of the bond and mortgage the question should be settled by a justice of the court upon notice, and further required the vendee to pay recording fees, the mortgage tax and the cost of drawing the bond and mortgage, the vendee cannot be adjudged to be in contempt for failing to comply with the decree, when his request to inspect the papers drawn by the defendant was refused and the defendant made no formal tender of the deed or mortgage, or demanded that the plaintiff execute them, or furnished any statement of the amount of recording fees and the cost of drawing the instruments.
    In any event, an order adjudging the vendee in contempt should not provide that he stand committed until he pay the balance of the purchase money and the recording fees, mortgage tax, etc., for such sums can be collected by execution.
    Appeal by the plaintiff, Henry Leerburger, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of March, 1915, adjudging plaintiff to be in contempt of court, and punishing him therefor.
    
      Everett V. Abbot, for the appellant.
    
      James J. Allen, for the respondent.
   Soott, J.:

The action is for the specific performance of a contract for the sale of real estate, plaintiff being the purchaser and defendant the vendor. Both plaintiff and defendant demanded judgment for specific performance, plaintiff, however, seeking an abatement from the purchase price by reason of certain alleged encroachments on the property, and defendant demanding performance without abatement. Judgment went for the defendant and was affirmed in this court and the Court of Appeals. (157 App. Div. 915; 213 N. Y. 662.) Service of a copy of the judgment and notice of entry and of the successive orders of affirmance were duly served on plaintiff’s attorneys.

The contract of sale provided that, the purchaser, in addition to the down payment, should pay the sum of $18,000 in cash at the time of closing the sale, and should give a purchase-money mortgagefor $85,000, said mortgage to be drawn by the attorneys ■ for the seller at the expense of the purchaser, who also agreed to pay the fee and mortgage tax upon recording such mortgage. The judgment in defendant’s favor provided that the plaintiff should specifically perform the contract by paying to defendant, at the office of his attorneys, within ten days after the service of a copy of the judgment, the balance of the purchase money, to wit, the sum of $18,000, at the same time and place executing and delivering to the defendant simultaneously with the delivery to said plaintiff of a deed to said premises his bond and mortgage for the sum of $85,000 in the form prescribed by the contract, it being provided that in the event of any dispute as to the form of said bond and mortgage the form thereof should be settled by a justice of the Supreme Court upon five days’ notice. It was further adjudged that upon the delivery of the bond and mortgage the plaintiff should pay to defendant the legal fees of the registrar for recording said mortgage, the mortgage tax prescribed by law and the fees of the defendant’s attorneys for drawing said bond and mortgage, and that in the event of any dispute as to the amount of said fees the same should be fixed by a justice of the Supreme Court upon five days’ notice. The defendant was also awarded costs. This judgment was entered on November 18, 1912. It was finally affirmed by the Court of Appeals on December 11, 1914. On January I, 1915, plaintiff, with his attorney, called at the office of defendant’s attorneys and raised certain objections to being required to complete his purchase according to the terms of the judgment, one of the objections being that he was entitled to a reduction of the amount of cash to be paid owing to the fact that defendant had been in receipt of rents from the premises since the date of the judgment. The defendant insisted upon payment of the full sum of $18,000. One of defendant’s attorneys then produced certain papers, which he stated were the deed of the premises duly executed by defendant, and the bond and mortgage which plaintiff was required to execute. Plaintiff demanded an opportunity to inspect those, papers which was refused unless he would "state that he was then ready, able and willing to make the cash payment of $18,000. It does not appear that any formal tender of the deed was made, or any presentation of the bond and mortgage with a demand that plaintiff execute them, nor was any statement made of the amount to be paid for recording fee, or mortgage tax or attorney’s fees for drawing the bond and mortgage, nor any demand for the payment of those sums or any of them. In short, defendant’s attorneys seem to have avoided doing everything necessary to be done in order to put plaintiff in default.

Thereupon a motion was made to punish plaintiff as for a contempt for his failure to obey the judgment, resulting in the order now appealed from. It adjudged the plaintiff to be in contempt for refusing to obey the judgment and recited the provisions of that judgment at length. It adjudged that plaintiff’s misconduct in that regard was calculated to and actually did defeat, impair, impede and prejudice the rights and remedies of the defendant and for such misconduct fined the plaintiff $250, with $10 costs. It committed plaintiff to the custody of the sheriff until he should pay such fine and costs and should, obey the judgment of the court, the terms of which were again recited. It then specifically provided in what manner the plaintiff should comply with said judgment, as follows: That such obedience to and compliance with said judgment may be made by the plaintiff as follows: He may give to the defendant’s attorneys two days’ notice in writing of the time and place at which he intends to render obedience to said judgment; and at said time and place shall pay to the defendant the sum of $18,000, being the balance of the purchase money, and execute and deliver to the defendant, simultaneously with the delivery to him of the deed of the premises mentioned in said judgment, his bond and a purchase money mortgage for the sum of $85,000 payable five years after date with interest at the rate of five per cent per annum, payable semi-annually, such bond and mortgage to be in the form prescribed by the contract mentioned in said judgment and to be presented to the plaintiff for execution at said time; any dispute as to the form of said bond and mortgage to be settled as provided in the aforesaid judgment; and at the same time and place the plaintiff shall pay to the defendant the legal fees of the Register for recording said mortgage, viz., the sum of ten cents for each folio contained in said mortgage, and shall pay to the defendant the mortgage tax prescribed by law on said $85,000 mortgage, viz., the sum of $425, and shall pay to the defendant’s attorneys their fees for drawing said bond and mortgage, which fees are hereby fixed at the sum of $7.50.”

It is quite apparent that this order cannot stand. Indeed the defendant specifically admits in his brief that it is erroneous in an important particular, in that it requires the plaintiff to stand committed until he shall pay the $18,000 balance of the purchase money. (Code Civ. Proc. §§ 1240, 1241; Kittel v. Stueve, 11 Misc. Rep. 279; affd., 146 N. Y. 380.) For the same reason, that is that the amounts could be collected by execution, it was improper to commit the plaintiff until he should pay the recording fees, the mortgage tax and the attorneys’ fees. (Kittel v. Stueve, supra.) Furthermore no demand was made upon plaintiff for the payment of those sums. ££ The order appealed from does not specify the sum to be paid, as provided by section 2285 of the Code of' Civil Procedure, but provides that, in addition to the sum named, Mr. Mesnier shall_p(M/ all the taxes, assessments and water rents up to the date of his discharge from imprisonment. The amount of these charges is not determined, and there is no way that the officer having the person in charge may know when the conditions of the order have been fulfilled. * * * This is not a compliance with the requirements of the Code. * * * The reason for this provision is obvious; it is for the purpose of enabling the sheriff to determine when the prisoner is entitled to his liberty. (People exrel. Post v. Grant, 50 Hun, 243, 247.) * * * The order must £ specify the act or duty to be performed, and the sum to be paid ’ (Code Civ. Proc. § 2285),* and these matters must be judicially determined. (Dejonge v. Brenneman, 23 Hun, 332.) * * * _ Because there is * * * no adjudication of the amount to be paid, * * * the order appealed from should be reversed.” (Burnham v. Denike, 53 App. Div. 407, 408, 409.)

As to the refusal to execute the bond and mortgage the order is equally unsupported. In the first place no demand was made upon plaintiff, and in any event he was entitled to an opportunity to inspect them before he was called upon to execute them, because otherwise he could not have the benefit of the provision in the judgment providing for objection to the form of the papers and a submission thereof to a justice of the Supreme Court. ISTor can we find in the record any evidence to support the finding that the plaintiff’s refusal to complete the purchase was “ calculated to and actually did defeat, impair, impede and prejudice the rights and remedies of the defendant herein.” A fine in a case like the present can be imposed only to indemnify the party aggrieved. “ The amount of thé fine, to indemnify the person aggrieved for the loss or injury, must be fixed upon proof of the damages sustained, according to the rules of law which would apply in an action for such damages. ” (Burnham v. Denike, supra.) We find no such proof in the record.

The appellant’s contention that defendant should account to him for rents received from the property since the date fixed by the judgment for the completion of the saléis not well founded. If plaintiff L.ad been prevented from completing by some act of the defendant a different question would have been presented. But in this case it was the purchaser, not the vendor, who has delayed the completion of the contract. He cannot claim the benefit of the delay.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, without prejudice to further proceeding to enforce the judgment.

Ingraham, P. J., Olarke, Dowling and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. 
      
       Now Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35), § 774.—[Rep.
     