Opinion
November 2, 1928.
Appeal from Supreme Court of New York County.
Vernal J. Williams of counsel [ James P. Ifill with him on the brief], for the appellant.
John Bradshaw Thorne, for the respondent.
The defendant appeals from an order directing Clinton A. Williams, president of the defendant, to pay to the plaintiff $3,000, together with the costs of a reference and a counsel fee, and providing that in case of the failure to make such payment, "final order committing said Clinton A. Williams for contempt may be applied for." The order is predicated upon a prior order made ex parte at Special Term which gives leave to the plaintiff, a religious corporation, to sell certain real estate to the defendant corporation for $3,000 over and above its mortgage incumbrances. It further provides "that the proceeds obtained from the sale be applied towards the payment" of the outstanding indebtedness of the plaintiff and to the carrying on of its work in its new location. Neither the defendant nor Clinton A. Williams personally was before the court when the first order was made and that order contains no direction whatever either to the defendant or to Clinton A. Williams personally. For this reason there is no basis for the making of an order directing the purchaser or its president to make payment. The sale was in no sense a judicial sale and the original ex parte order was merely permissive.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
DOWLING, P.J., FINCH, McAVOY and MARTIN, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.