App. Div.] First Department, February, 1906. said Code provides for enforcing a decree of the surrogate directing the payment of money by an executor, from the estate, by contempt proceedings. So that the debt owing the testatrix is declared to be money in the executor's hands, the final decree is declared to be conclusive evidence that there are sufficient assets in his hands to pay the sum decreed, and if he does not pay, he is liable as for a contempt. In Baucus v. Stover (89 N. Y. 1) the Court of Appeals said: "We perceive no room for doubt; the statute* says the debt shall be treated as money, and the courts have no right to say it shall not be so treated." But the court also said: "While the debt must be treated as money in (the executor's) hands for the purpose of administration it will not, for all purposes, stand on the same footing as if he had actually received so much money. If wholly unable to pay the money in pursuance of the order or decree of the surrogate on account of his insolvency, he cannot be attached and punished for contempt as he could be if the money had actually been received from some other debtor." In Baucus v. Barr (45 Hun, 582; affd., 107 N. Y. 624), in an action upon the bond of the same executor as in Baucus v. Stover (supra), for his failure to comply with a decree, it was held that if his sureties could show the insolvency of the executor, they would not be held liable for the breach of the bond. In Keegan v. Smith (60 App. Div. 168) an action was brought by the next of kin of decedent upon the bond of her administrator. A decree of the surrogate charged the administrator with his debt due to the intestate. The defendant claimed that the administrator being insolvent and not being able to pay the debt, the surety was not liable. The court below did not pass, in terms, upon the question whether the administrator was insolvent, but did find that he had been charged with his debt by the surrogate in the decree rendered against him, and as a conclusion of law found that the administrator having been charged with these amounts, the surety was liable for his failure to pay. This court, after citing Baucus v. Stover and Baucus v. Barr (supra), said: "When, therefore, an action is brought against a surety upon his bond after the return of an execution unsatisfied, all that it is necessary for the plaintiff to do is to prove the decree of the surrogate in the proper way, and *See 2 R. S. 84, § 13, revised in Code Civ. Proc., § 2714.- [REP. First Department, February, 1906. [Vol. 111. the other essentials necessary to charge the surety, and if the surety seeks to relieve himself from the liability which is prima facie imposed upon him, the duty is upon him to show that although presumptively the administrator is chargeable with the debt as for so much money in his hands, and has been so charged in the decree, yet, as a matter of fact, he cannot pay it and he is not guilty of a default, and that, therefore, the surety is not liable. * * * The burden of the proof was upon the surety. The decree was conclusive upon him, and he was liable for the default of the administrator, unless he showed that the administrator was unable to pay and consequently unable to perform the decree of the surrogate as directed. If he desired to prove that fact he must obtain a finding, and unless there was a finding in that regard, there was nothing to excuse him from his liability upon the decree of the surrogate." In that case the trial court did not make a finding that the adminisrator was able to pay the debt, but this court said: "Such a finding was not necessary to sustain the judgment, but if it had been, the rule is settled that the evidence may be referred to, to see whether there was sufficient proof to warrant it, although it was not made; and if there is sufficient the judgment will be sustained, although the finding is not actually made by the court. But while * * * the court is at liberty to examine the evidence to see whether there was sufficient proof to sustain the decision, it is not at liberty to examine the evidence to see whether there was testimony to supply a finding to reverse the judgment.” Applying those propositions to the case at bar, it is clear that the decree was conclusive upon the executor that the money was in his hands, and upon proof of default the case was made out and the order followed, unless the executor sustained the burden of showing his inability to pay. There is no finding in the order either way. It was not necessary that there should be a finding that he was unable to pay; but if there were such necessity, we are authorized to look into the evidence for the purpose of seeing whether there is enough to sustain such a finding. Looking into the affidavits upon both sides and weighing the circumstances disclosed, we are of the opinion that the executor has not sustained the burden of showing his financial inability. The fact that he made no such claim during the long years of the protracted litigation conducted by him, his App. Div.] First Department, February, 1906. mode of life and the paucity of facts to sustain the conclusions set up by him, taken with the facts set forth by the moving party, satisfy us that the order of the surrogate was proper. If as matter of fact the executor is really unable to pay the amount imposed as a fine for his default, the provisions of section 2286 of the Code of Civil Procedure may be invoked. That section provides that "where an offender, imprisoned as prescribed in this title,* is unable to * * * pay sum required to be paid * in order to entitle hiin to be released, the court * * the * * * * * * may in its * discretion, and upon such terms as justice requires, make an order directing him to be discharged from the imprisonment." The order appealed from should be affirmed, with costs. O'BRIEN, P. J., PATTERSON, INGRAHAM and LAUGHLIN, JJ., concurred. Order affirmed, with costs. Order filed. In the Matter of the Application of THE COMMISSIONER OF PUBLIC WORKS OF THE CITY OF NEW YORK, for and on Behalf of THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Relative to Acquiring Title in Fee to Certain Pieces or Parcels of Land Between East One Hundred and Twenty-fifth Street and First Avenue and the Harbor Commissioners' Line of the Harlem River, and Between the Southerly Line of One Hundred and Thirty-second Street and Willis Avenue and the Southerly Line of One Hundred and Thirty-fourth Street and Willis Avenue, etc., for the Construction of a Bridge Over the Harlem River, etc., Pursuant to the Provisions of Chapter 147 of the Laws of 1894. THE CITY OF NEW YORK, Appellant; MARY ANN PALMER DRAPER and Others, Respondents. First Department, February 9, 1906. Municipal corporations-condemnation proceedings for street opening in city of New York-no appeal from order of Special Term sending back report to commissioners for correction. The amendments made in the Street Opening Law by section 988 of the charter of Greater New York, expressly allowing an appeal to the Appellate Division * Code Civ, Proc, chap, 17, tit, 3,- [REP, First Department, February, 1906. [Vol. 111. by the city or any party aggrieved by the report of the commissioners of estimate on condemnation proceedings for the opening of streets "when confirmed," relate to matters of practice only, and hence allow an appeal from an order confirming such report in a condemnation proceeding instituted before the passage of said amendment. But said section is confined in its operation to such report when confirmed by the Special Term, and there is no appeal authorized from an order of the Special Term refusing to confirm the report of said commissioners and sending the same back with directions requiring a further report in accordance therewith. Local statutes cited and construed. APPEAL by The City of New York 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 3d day of March, 1904. John P. Dunn [Thomas C. Blake with him on the brief], of counsel; John J. Delany, Corporation Counsel, for the appellant city. John C. Shaw, for the respondent Draper. James A. Deering, for the respondents Swift. George Holmes of counsel [DeForest Brothers, attorneys], for the respondents Johnston. CLARKE, J.: This is an appeal by the city of New York from an order of the Special Term of the Supreme Court denying the motion to confirm the second partial and separate report of commissioners of estimate, and returning said report to said commissioners with certain directions, and for a further report in accordance therewith. It is claimed that said order is not appealable. These proceedings were instituted on the petition of the commissioner of public works in behalf of the mayor, aldermen and com. monalty of the city of New York, pursuant to chapter 147 of the Laws of 1894, entitled "An act to provide for the construction of a bridge over the Harlem river in the city of New York." Section 4 of said act authorizes the commissioner of public works, with the consent and approval of the board of estimate and apportionment, and on behalf of the city, to acquire title in fee to any land which he may deem necessary for the purpose of App. Div.] First Department, February, 1906. the construction of the bridge and approaches, and provides that "the provisions of law relating to the taking of private property for public streets or places in the said city are hereby made applicable as far as may be necessary to the acquiring of the said land as aforesaid. * * *" The awards to be made for these lands and the expense of the condemnation proceedings are by section 4 of the act made part of the expense of the construction of the bridge, which, under section 3 of the act, is to be borne by the city. The latter section has been amended by chapter 607 of the Laws of 1901. By an order of the Special Term, dated December 31, 1895, commissioners of estimate were appointed to perform the duties required of them by law. During the progress of the proceedings the Legislature passed chapter 664 of the Laws of 1897, amending section 4 of the act of 1894, under which the proceedings were commenced, but no change was made in the provision above cited as to the procedure of the commissioners of estimate under the so-called street opening laws. The taking of testimony commenced March 2, 1896, and the report of the commissioners was dated March 3, 1899. Thereafter, by order of the Special Term, the report was referred back to the commissioners with certain directions, and they again reported in accordance with those directions under date of October 29, 1901. The order appealed from is dated February 25, 1904. The first Greater New York charter, by its terms, took effect upon the 1st day of January, 1898. The revised charter went into effect January 1, 1902. To determine this question of appealability it becomes necessary, therefore, to consider what were the provisions of law governing street opening proceedings at the time of the passage of chapter 147 of the Laws of 1894, authorizing the construction of the bridge, and as now existing. The law governing the opening of streets in the city of New York (Revised Laws of 1813, chap. 86, § 177 et seq.) has been upon the statute books with substantially the same provisions for upwards of ninety years, was embodied in the Consolidation Act (Laws of 1882, chap. 410, § 963 et seq.) and continued in the Greater New York charter (Laws of 1897, chap. 378, § 970 et seq.), and the revised charter (Laws of 1901, chap. 466, § 970 et seq). In many proceedings to acquire private property for public uses |