Page images

cater rents and referred to subseq the referee herein.

FORM No. 2261. Order fizing amount of deficiency on re-sale, for which original purchaser is

liable. 46

At a Special Term [etc., as in

Form 820, p. 1174]. [Title of cause.]

The plaintiff having moved for an order fixing the amount directed by the order of this court herein, dated the day of

, 19 , to be paid by M. N. [the defaulting purchaser] to the referee herein as the amount of the deficiency, and costs and expenses of the resale therein ordered, as well as for the taxes, water rents and assessments which may have become liens on the premises therein referred to subsequent to the first sale; and that said M. N. be directed to pay to the referee herein the sum so fixed (and for such other and further relief as may be just]; and the said motion regularly coming on to be heard [continue with appropriate recitals of moving papers, and either recite personal service of motion papers upon purchaser, or his appearance by counsel on argument];

ORDERED, that the said motion be and the same is hereby granted, with ten dollars costs to the plaintiff, and that the amount directed by the order of this court herein dated the day of

, 19 , to be paid by said M. N. to the referee herein is hereby fixed at the sum of dollars, with interest thereon from

, 19 , to the day of payment; and it is further ORDERED, that said M. N. pay the said sum of dollars, with interest as aforesaid, to the referee herein within (five] days after personal service upon him of a certified copy of this order. Enter:

FORM No. 2262.
Affidavit to move to compel purchaser to complete his purchase.47
[Title of court andoaction.]

A. T., being duly swom, says:
I. That he is [the attorney for] the plaintiff in this action.

46 From Rowley V. Feldman, 74 App. Div. 492, 77 N. Y. Supp. 453; affa, 173 N. Y. 607. Proceedings to punish for contempt may properly be founded upon this order. Rowley Ľ.

Feldman, 84 App. Div. 400, 82 N. Y.
Surn. 679. 13 Anno. Cas. 173.

47 The proper remedy is a motion in the action. Crane r. Robinson, 19 Misc. 40, 42 N. Y. Supp. 874. Plaintiff cannot bring an action to compel a specific performance. Burton v. Linn, 21 App. Div. 609, 47 N. Y Supp. 835. It is discretionary with the court whether to order the pur. chaser to complete, or direct a resale at his expense. Id.

II. That the action was instituted for [the foreclosure of a mortgage], and the [mortgaged] premises were offered for sale on the day of

, 19, under the direction of the sheriff of

county [or, of R. F., Esq., referee, whose report of sale is hereto annexed], under terms of sale, a copy of which is annexed, and were purchased by M. N., and by the terms of sale the deed was to be delivered to the purchaser, and the purchase-money was to be paid to the sheriff [or, tu said referee) on the day of , 19 .

III. That said purchaser declines to complete his purchase [indicate ground, if any, and allege facts showing it to be unfounded]. [Jurat.]

[Signature.] [Present also referee's certificate that purchaser is in default.]

FORM No. 2263.
Order compelling purchaser to complete.48

At a Special Term [etc., as in Form

820, p. 1174 of this volume]. [Title of action.]

[After appropriate recitals see Form 101, p. 259, Volume I - including a recital of personal service of the moving papers upon the purchaser, and his appearance by counsel if the fact:]

ORDERED, that the said motion be and the same is hereby granted, and M. N., the purchaser of the premises under the judgment of foreclosure and sale herein, is hereby directed to complete his purchase within (ten] days of service upon him of a copy of this order.

If a title rests on parol evidence, a purchaser will not be compelled to take it. See Huber v. Case, 93 App. Div. 479, 87 N. Y. Supp. 663; Coll. Point Sav. Bank v. Vollmer, 44 App. Div. 619, 60 N. Y. Supp. 389; Stephens . Flammer, 40 Misc. 278, 81 N. Y. Supp. 1064. But a purchaser may be compelled to take a title

founded upon adverse possession, though the proof thereof must be clear. Metzger . Martin, 87 App. Div. 572, 84 N. Y. Supp. 494; afid, 177 N. Y. 561. Compare Gorman r. Gorman, 40 Apr. Div. 225, 57 X, Y. Supp. 1069: affid, 159 N. Y. 571: and see Freedman ü. Oppenheim, 157 N. Y. 101.

48 Disobedience of this order may be punished as a contempt of court. Burton r. Linn, 21 App. Div, 609, 47 N. Y. Supp. 835.

An assignee of the bid may be compelled to complete. Archer 0. Archer, 155 N, Y. 415.

FORM No. 2264.
Order awarding possession.48a

At a Special Term [etc., as in

Form 820, p. 1174]. [Title of action.]

On reading and filing the affidavit of A. B., the purchaser at the sale of the mortgaged premises in this action, verified the day of

, 19, and on the judgment-roll entered herein in the office of the clerk of county on the day of , 19 , and the report of sale of Esq., the referee to sell, filed in said office on the day of 19 [and the order confirming said report entered herein on the

day of ,19 ], and on the deed from said referee to said A. B., bearing date the day of , 19, and on the notice of this motion, with due proof of the service thereof on C. D., who is now in possession of the said mortgaged premises, and after hearing , Esq., attorney for the said A. B., in behalf of this motion, and , Esq., attorney for said C. B., in opposition thereto:

ORDERED, that the sheriff of the county of put the said A. B. into possession of the said mortgaged premises according to the true intent and meaning of the said judgment; said premises are described as follows (full description.] Enter: [signature of judge by initials of name and title.] II. SPECIFIC PERFORMANCE BY DELIVERY, ETC.

FORM No. 2265. Order that clerk deliver a conveyance or other thing deposited in court. [Title (court order) and recitals; see Form 820, p. 1174]. ORDERED, that the clerk of this court [or, of the county of

] deliver to the plaintiff] A. B., or his attorney, upon the entry of this order, a certain deed executed by the [defendant] Y. Z. to said plaintiff for the conveyance of property on street in the city of , which deed bears date the day of , 19, and was deposited in the office of said clerk on the day of , 19.

Enter: [signature of judge by initials of name and title.]

follows [full of the said to premises a

48a Under Code Civ. Pro., 8 1675, such an order should be made, rather than a writ of assistance. Title Guar.

antee, etc., Co. v. American Power, etc., Co., 95 App. Div. 192, 88 N. Y. Supp. 502.

darcourt that a com: by whics

FORM No. 2266. Order that sheriff convey property which a party has failed to convey under

judgment.49 [Title (court order); sce Form 820, p. 1174.] On reading the judgment entered herein on the day of

, 19 , in the office of the clerk of the county of , which contains, among other things, an adjudication and direction that (quoting direction to convey], and on reading and filing the affidavit of M. X., verified the day of

, 19 , [and the certificate of the sheriff of the county of dated the day of , 19, by which it appears to the satisfaction of the court that a certified copy of said judgment was, on the day of , 19 , duly personally served on said Y. Z., with due notice of its entry, and due demand there upon made that he comply with said direction, and that on the

day of , 19, a deed of conveyance, in proper form for execution by him under and in pursuance of said judgment, was by said A. B. duly presented to him, and his execution thereof pursuant to said judgment demanded, a copy of which deed is hereto annexed, and that said Y. Z. has wholly refused to make or execute such a conveyance, and has disobeyed said direction in said judgment; and on reading proof of due notice of this motion given to said Y. Z. personally, and after hearing A. T., of counsel for plaintiff, and T. Z., of counsel [or, no one appearing] for defendant in opposition, and due deliberation being had; Now, on motion of A. T., attorney for said plaintiff: it is

ORDERED, that S. H., the sheriff of the county of and he hereby is directed in the name of said Y. Z. to execute and in his stead to acknowledge and deliver to said A. B. the deed of which said copy is hereto annexed, and that said deed shall stand and be a good, sufficient and complete conveyance of the premises in said judgment directed to be conveyed by said Y. Z., and all its terms, conditions, covenants and provisions, of whatsoever nature, shall bind said Y. Z. and all claiming under or through him as effectually as if the same had been executed by him.

[This order is without prejudice to any proceedings that hare been or may be taken against said Y. Z. to punish his said disobedience as a contempt.]

Enter: [signature of judge by initials of name and title.]

rection in said jen to said I. 2. 1. Z., of counsel deliberation

[ocr errors]

19 N. Y. Code Civ. Pro., $ 718; 8. P., Langdon v. Sherwood, 124 U. S. 74.

FORM No. 2267.

Motion for receiver after judgment.50 [May apply on affidavit, on notice, which, if the defendant's attorney of record, or some other attorney, has not acted for him in the cause, since judgment, should be personally served, or served as the court may, by order to show cause, direct. Apply to the court. Adapt order of appointment with directions and powers, from Forms in Chapter VIII.]

50 The court has inherent power to appoint a receiver; and may appoint one after final judgment to carry it into effect (Wright v. Vernon, 3 Drew, 112; Schreiber v. Carey, 9 Reporter, 526, and cases cited; N. Y.

Code Civ. Pro., & 713), even though not prayed for in the complaint. Merrill 1. Elam, 2 Tenn. (Cooper) 513; Connelly . Dickson, 76 İnd. 440; abst. s. C., 6 Wkly. Cin. Law Bul. 747; High on Recs., 2 ed., 38.

« PreviousContinue »