
    Horace T. Rowley, Respondent, v. Rachel Feldman and Others, Defendants. Thomas F. Baldwin, Appellant.
    
      Failure of a purchaser at a mortgage foreclosure sale to 'pay the amount bid—-his liability where a resale takes place must be adjudged before contempt proceedings can be instituted.
    
    Upon the failure of a purchaser at a mortgage foreclosure sale to complete his purchase, an order was made directing a resale and requiring the purchaser to pay to the referee any deficiency between the amount realized on the original sale and the amount realized on the resale, together with any costs and expenses occurring on such resale, and any taxes, water rents or assessments which had or might become liens on said premises between the time of the original sale and the closing of the resale, together with ten dollars costs of the motion. After the resale took place, at which the premises were sold for a less sum than that bid at the former one, the plaintiff's attorney served upon the purchaser at the original sale a notice stating the amount chargeable against him under the order directing the resale, and a demand was made for payment thereof, and a notice was given that upon his failure to make such payment a motion to punish him for contempt would be made.
    The payment not having been made, the court upon the motion of the plaintiff’s attorney, made an order adjudging the purchaser on the original sale to be guilty of contempt, in having willfully disobeyed the order directing the resale, and adjudged that he pay to the clerk of the court the amount specified in the notice served by the plaintiff’s attorney, with ten dollars costs, and that he be imprisoned until payment was. made.
    
      Held, that as the order directing the resale did not adjudge the payment of any specific sum by the purchaser it could not, under subdivision 3 of section 14 of the Code of Civil Procedure, be made the foundation of a contempt proceeding; That the purchaser was entitled to have the amount with which he was chargeable definitely ascertained before the contempt proceeding was begun.
    Appeal by Thomas F. Baldwin 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 30th day of September, 1901, adjudging him guilty of a. contempt of court.
    
      Charles C. Sanders, for the appellant.
    
      John Ewen, for the respondent.
   Patterson, J.:

This is an appeal from an order adjudging Thomas F. Baldwin to be in contempt for failure to comply with an order dated the 22d day of April, 1901, that order having been made under the following circumstances: In an action for the foreclosure of a mortgage the plaintiff had recovered.a judgment directing a sale of mortgaged premises, and pursuant to such judgment such premises were- sold on the 20th of February, 1901. Margaret Baldwin, the mother of Thomas F. Baldwin, was the holder of a second mortgage. Without her knowledge, her son made an arrangement with the plaintiff by which he agreed, on behalf of his mother, to bid the property in for enough to protect the plaintiff and his mother’s mortgage. He bid- the slim of $24,900 and individually signed the terms of sale. His mother repudiated the transaction, and Thomas F. Baldwin being unable to complete his purchase, an application was made by the plaintiff to the Supreme Court for an order directing a resale of the premises and to charge Thomas F. Baldwin and Margaret Baldwin with any deficiency that might arise on such resale. Upon that application an order was made April 22, 1901, directing a resale and ordering that Thomas F. Baldwin pay to the referee the amount of any deficiency there might be between $24,900, the sum for which the premises were struck down upon the sale on February 20, 1901, and the sum for which said premises would be purchased on the resale thereof, together with any costs or expenses occurring on said resale, and any taxes, water rents or assessments which had or might become liens on said premises between the sale of February 20,1901, and the day of closing on a resale of the premises, together with $10 costs of the motion. A resale was had and the plaintiff bid in the premises for the sum of $23,500: .The difference between the two bids is $1,400. It is also made to appear that the expenses of the resale were $109.55, and the Croton water tax accrued between the first and second sales was the sum of $68. On the 5th of August, 1901, the plaintiff caused to be served on Thomas F. Baldwin a notice stating that the deficiency chargeable against him under the order of April 22, 1901, was the sum of $1,577.55, and a demand was made that he pay said sum to the referee, and further notice was given that upon his failure to do so' within ten days from the service of the notice, the plaintiff’s attorney would move for an order punishing him for contempt of court by reason of his disobedience of the order of this court dated April 22, 1901. Payment not having been made, this application to punish for contempt was presented to the court and the order appealed from was made. By that order it is adjudged that Thomas F. Baldwin is guilty of contempt in having willfully disobeyed the order of April 22, 1901, by reason of his refusal and failure to pay to the referee the deficiency, and that his conduct tended to and did hinder, delay, impede and prevent the' plaintiff from pursuing the remedy to which he is entitled by law; and it is further ordered, adjudged and decreed that Thomas F. Baldwin pay to the clerk of the court the sum of $1,577.55, with $10 costs, for the use and indemnity of the plaintiff, and that he be imprisoned in the county jail of the county of New York until such sum be paid, and a commitment issue to carry this judgment into effect.

This proceeding was instituted under subdivision 3 of section 14 of the Code of Civil Procedure, which section prescribes ‘what con-■tempts may be punished civilly. Subdivision 3 authorizes the punishment by fine and imprisonment, or either, of a person “ a party to-the action or'special proceeding * .* * 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.” Section 2284 of the Code relates to the amount of fino to be imposed, and provides that if an actual loss or injury has been produced to a party to an action or special proceeding by reason of the misconduct proved against the offender "" * * a fine sufficient to indemnify the aggrieved party must be imposed upon the offender and collected and paid over to the aggrieved party under the direction of the court. * * * Where it is not shown • that such an .actual loss or injury has beén produced, a fine must be imposed, not exceeding the amount of the complainant’s costs and expenses and two hundred and fifty dollars in addition thereto.” , . In this case it would seem to be apparent that no foundation was laid in the order of April 22,1901, for a contempt proceeding. Subdivision 3 of section 14 .expressly relates to the disobedience of an order for the non-payment of a sum of money ordered or adjudged by the court to be paid. No specific sum of money was adjudged to be paid by the order for the alleged disobedience of which Thomas F. Baldwin has been adjudged to be in contempt. It was impossible for him to know from that order how much money he should pay, and he was entitled to be heard upon that subject and to have it expressly determined what amount, if any, he should pay before contempt proceedings could be instituted. In Boss v. Butler (57 Hun,. 112) it is said that in order that a commitment may ■issue under any circumstances, the precise thing.to be done by the party proceeded against must be stated in the judgment or order. Here there was no precise thing ordered to be done, except to pay an undetermined and then undeterminable amount. Who. was to fix the.amount which he should be required to pay before he would be brought within the peril of disobedience of an order of the court? It was not to be determined in the contempt proceeding itself, but was something to be ascertained and fixed definitely before such a .proceeding would be begun.' Here' the plaintiff’s attorneys by a notice have undertaken to fix the amount, or to have it fixed, in the contempt proceeding itself. The person moved against was never heard before the institution of the proceeding as to the amount for which he was liable, if any, and it is a fair subject of dispute whether he was liable for $1,577.55 or whether he could be fined only $250, or whether, upon the facts which now appear before us, a sufficient indemnity to the plaintiff would not have been the sum of $50 only.

The order appealed from deprives the appellant of his personal liberty. In this case, as in the case of Ross v. Butler, above cited, when this proceeding was begun the' court had not determined the precise amount which the appellant was to pay, and until that was done he could not be subjected to this proceeding.

The order appealed from should be reversed, with ten dollars costs and. disbursements, and the motion to punish for contempt denied, with ten dollars costs.

Ingraham, Hatch and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  