
    Edward V. Burton, Plaintiff, v. Frank E. Linn et al., Defendants.
    (Supreme Court, New York Special Term,
    September, 1897.)
    Foreclosure — Inability of purchaser to raise the money for hér hid is not a contempt.
    Where the failure- of a purchaser upon a sale in foreclosure to comply with the terms of sale results, in so far as appears, from her inability to raise the money required, the court will not, although it has made an order requiring her- to complete within five days after service of the copy of the order, punish her failure- as a contempt; the ends of justice being sufficiently met by the fact that the deposit which she made upon the sale • will be depleted by the expense of the resale, and by the amount of any difference between the amount realized thereon and the original bid.
    Motion to punish for contempt a purchaser of real estate at foreclosure sale, who refused to complete her purchase after service of order, requiring her to do so.
    J. C. De La Mare, for plaintiff.
    —---, for Nora O’Connell.
   Russell, J.

The plaintiff’s attorney requests an order punishing Nora O’Connell, .for contempt in not completing the purchase by her of certain plots of land bought at a sale: had pursuant to a judgment of foreclosure. Upon notice to her, an order was made requiring her to complete the purchase, and pay-the balance of the purchase money over the ten per cent, deposited, within five days after the service of a copy of the order upon her. She has neglected to comply with that order, probably on account of incapability, but the cause does not appear. On the hearing of this motion to punish, her counsel did not oppose the motion on the merits but requested time. The motion, therefore, is practically unopposed, but orders are not granted even in such cases without scrutiny, and especially where the liberty of a person is involved.

There is no doubt but that the purchaser by bidding at the sale, and allowing the premises to be struck down to her, subjected herself to the jurisdiction of the court, as to all matters incidental to such sale. Miller v. Collyer, 36 Barb. 250; Requa v. Rea, 2 Paige, 339; Cazet v. Hubbell, 36 N. Y. 676.

In 1808, in a case in the High Court of Chancery in England, Lord Chancellor Eldon expressed- some doubt as to the power ‘of the Court of Chancery to commit in such a case as this, but finally concluded he would not allow the purchaser to baffle the court and disobey the order, and so gave the order for judgment. 14 Yes. 512. But that decision was made in the days when the order of the High Court -of Chancery was usually punishable in any case for disobedience as for contempt and when .imprisonment for debt upon simple contract was permitted in all cases.

The tendency of the courts in inore modem days has been to avoid, or' refuse, imprisonment for debt for the nonpayment of money, even in cases where the party required to pay was trustee. Myers v. Becker, 95 N. Y. 486.

• Inability to pay is not a crime, and the difficulty and doubt in the Way of correctly ascertaining whether that inability exists has led to the general rule that judgments or orders for the payment of money are enforcible only by proceedings against property. It is with this view that our Code of Civil Procedure, section 16, has enacted that, where it is not otherwise specially provided by law, no person shall be arrested or imprisoned for disobedience to a judgment or order, requiring the payment of money due upon a contract, express or implied, or as damages for nonperformance of a contract. Where -the payment of the money is connected with a duty which makes it a matter, of obligation to the public, or to persons protected by the obligations of public duty, as in case of the payment of alimony for the support of a wife, imprisonment may well be directed until its nonefficacy has become apparent. Where a person is enjoined to do or refrain from doing an act, as the execution of a conveyance which he can alone execute or the abstinence from the use of property which does hot belong to him, imprisonment for contempt may well follow disobedience. Where fraud or wrong is coupled with the creation of the obligation, arrest may follow a failure to perform duty. But where performance is in execution of a contract simply, the nonpayment of money should not be punished as for a crime. ■

In the case at bar, the ten per cent, deposit was undoubtedly required to protect against the necessity of a resale. If that percentage was not large enough, a better foresight should have required a larger percentage. Upon the amount realized upon a resale, the deficiency can he readily ascertained* after deducting the added expenses, and the purchaser required to lose up to the amount of the deposit, or an execution issued to collect the amount to’be paid. Motion to punish for contempt denied.

Motion denied.  