The duties of the defendant as referee for sale of the mortgaged premises, under the judgment of foreclosure, were ministerial in their character, and a slight attention to the terms of the judgment would have prevented any controversy.
The duty of the referee was to sell the premises to the highest bidder, and after receiving the purchase money to pay therefrom his own fees and expenses on such sale, and then all liens upon said premises, existing at the time of the sale “for taxes and assessments, or prior mortgage,” and from the residue pay the costs awarded to the several parties and the amount reported due the plaintiff, with the interest thereon, or so much thereof as the purchase money of the premises would pay of the same.
Such are the plain directions of the judgment, and if without or before paying the prior liens he has paid the plaintiff, and the other parties, the amounts awarded to them, he has done so at his peril and in his own wrong. The terms of the sale could not vary the judgment or relieve the referee .from the performance of h! duties. They did not assume to do so in this case. The fourth clause of the terms of sale permits the purchaser to substitute the payment of prior liens for money, pro tanto, in his settlement with the referee and payment of the purchase price. .But if the purchaser elects to pay the money, take his deed and hold the referee to the proper execution of the judgment, he may do so.
*101It is true that here the purchaser did not assume this position, and it is now objected that the referee had no sufficient evidence of the prior mortgage or its payment by the relator. The answer to this is that the existence and valdity of the mortgage or its actual payment are not controverted, and the objection to the sufficiency of the evidence of either fact was not taken at the time of the tender of the balance of the purchase money and the demand of the deed. The relator does not claim to have paid the lien, by taxes and assessments, and they are to beascertained and paid by the referee.
The order of December 20, 1872, was in accordance with and execution of the judgment under which the premises were sold, and was within the jurisdiction of the court. If it was improvidently or erroneously granted, the remedy of the party aggrieved was by application to vacate it, or by appeal. It is not void and it cannot be reviewed upon an application to punish for a disobedience of it; so long as it remains in force the duty of all parties is to obey it; and the merits of the order are not reviewable (People v. Sturtevant, 9 N. Y. [5 Seld.], 263 ; Sullivan v. Judah, 4 Paige, 444; Higbie v. Edgerton, 3 Id., 253). Neither is it a defense in proceeding to punish for a contempt that an appeal has been taken from the order. If the proceedings have not been stayed, the party has a right to take every step for the enforcement of his civil remedy, that he might if no appeal was taken. In this case, the proceedings are not stayed, but the relator has, by express permission of the court, the privilege of making such application under the order as his counsel may advise. It is no objection to the order of the special term adjudging the defendant in contempt, that the court suspended final action for a brief period to enable the defendant to comply with the original order, or perform any act .as a substitute for such compliance.
*102That was an act of grace to the defendant, which did not deprive the court of jurisdiction or prevent a final decision of the motion upon the merits. The defendant cannot complain that an opportunity was given him to purge the alleged contempt. The disobedience of the order, was clearly established, and if there was any disability on the part of the defendants-to comply with the order, it was the result of his own act, in disregarding the terms and directions of the judgment, and he cannot avail himself of bis own acts to justify a disobedience of the orders of the court, of which he was an officer.
An affidavit is annexed to the record, but which, in the nature of things, can make no part of the return to ■ the appeal, to the effect that after the making of the order at special term, which is the subject of the appeal, the defendant did comply with the suggestions of the court, made upon suspending the final decision. If this were so, and the defendant had any claim founded upon such action, to be absolved from, the-contempt, he should have applied for relief to the court.
He cannot have the benefit of such action upon an appeal from the order punishing him for contempt. That must be disposed of upon the papers before the court below.
The order must be affirmed.*
A majority of the judges concurred.
The appellant moved for a reargument, which was denied.