81 N.Y.S. 260 | N.Y. Sup. Ct. | 1903
This is a motion to punish a purchaser at a foreclosure sale for contempt of court for failure to comply with an order directing him to complete his purchase. Independently of the merits, the motion must be denied, for the papers are replete with defects.
In the first place the application is made on notice of motion instead of by order to show cause. This alone is fatal. Sandford v. Sandford, 40 Hun, 540; People v. Rice, 26 N. Y. Supp. 345; Code of Civil Procedure, § 2269. The defect is not cured by referring to the order to show cause on which the order directing the completion of the purchase was made, and which was in the alternative why the purchaser should not complete
Secondly, the moving papers, i. e., the attorney’s affidavit and the order directing completion fail to show any facts from which the court can adjudge that a right or remedy of the plaintiff has been defeated, impaired, impeded; or prejudiced. This defect is also fatal. Code of Civil Procedure, § 14; Fischer v. Raab, 81 N. Y. 235; First National Bank v. Fitzpatrick, 80 Hun, 75; Socialistic Co-operative Publishing Association v. Kuhn, 51 App. Div. 583. The previous proceedings in this action cannot be resorted to in order to discover these facts, as they are not recited in the notice as the basis of the motion.
Thirdly, the order directing the purchaser to complete was, according to the affidavit of service of the order annexed to the moving papers, not served until three days after the expiration of the time within which the purchaser was directed to complete.
Upon a re-examination of that order, which was made by me, I am of the opinion that it should not have been entered in the form adopted. By an oversight the purchaser was directed ■ to complete on the same day that the order was signed, which was quite beyond my intention. Deliberation had on this motion satisfies me that that order should be resettled. While there is no doubt of the power of the court to punish for contempt where a purchaser refuses to complete, without offering satisfactory explanation for his omission (Burton v. Linn, 21 App. Div. 609), it
The present motion is denied, and if the purchaser be so advised, I will entertain a motion for the resettlement, as indicated in this opinion, of the order heretofore entered.
Motion denied.