
    In the Matter of the Application of The Manhattan Railway Company and The Metropolitan Elevated Railway Company, Respondents, v. Christina O’Sullivan and Others, Appellants, Relative to Acquiring Title to Certain Real Property in the City and County of New York.
    
      Condemnation Lam—the order confirming the report of commissioners is a final order — the applicant cannot on appeal retain both the property and the a/wa/i'd— form of bond to be given by the owner in order to secure repayment of the award, if reckiced— Code of Civil Procedure, § 3371.
    An order confirming the report of commissioners appointed under the Condemnation Law of the Code of Civil Procedure is a final order, and the question whether an appeal lies therefrom to the Court of Appeals is a matter to be determined by that court.
    Where the corporation instituting such proceeding desires to appeal from an award in favor of the owner for a substantial amount, the corporation should not be allowed to keep the property taken, and also to retain, during the pendency of the appeal, the amount of the award.
    The proper course in such case is for the court to direct the corporation to pay the amount of the award, and require the owner to give a bond in a suitable amount, conditioned that if the order shall be reversed and a new appraisal shall be made, under which a less sum shall be awarded to the owner than had been awarded in the first instance, the owner will make restitution to the corporation of the difference between the amount which the owner shall receive under the existing order and that which he may receive under the new order, if the award shall be thereby reduced.
    
      Appeal by the defendants, Christina O’Sullivan and others, 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 1th day of July, 1896, granting the plaintiffs’ motion for a stay of execution on the final order of the Appellate Division, pending an appeal by the plaintiffs from the said order of the Appellate Division to the Court of Appeals.
    This proceeding was instituted for the condemnation of property under the provisions of the Code of Civil Procedure.
    
      William V. Rowe and Joseph H. Choate, for the appellants.
    
      Edward C. James, Julien T. Davies and William H. Godden, for the respondents.
   Per Curiam :

The order which was appealed from in this proceeding is a final order. (Code Civ. Proc. § 3311.) Whether an appeal lies to the Court of Appeals is a matter to be determined by that court (Barnum v. Seneca Co. Bank, 6 How. Pr. 82; Morrison v. Morrison, 16 Hun, 501), and cannot be considered upon the hearing of this motion. If the plaintiffs are entitled to review that order, it is quite clear that they should have either a stay of proceedings, or in some other way be protected in their rights during the pendency of the appeal. Under ordinary circumstances, where the question at issue was whether or not the successful party was entitled-to recover anything, it would be the better course to give a stay of proceedings, upon the defeated party giving a bond to pay the judgment if it should be affirmed, as was done in this case pursuant to the order of the Special Term. But that is not precisely this case. Here there is no doubt of the right of the defendants to have from the plaintiffs, as the price of this property which is to be condemned, a considerable sum of money, and the only question is whether the sum which was awarded to them was more than they should have recovered. The plaintiffs have the property, and as long as they hold the property it certainly is no more than just that they should pay to the defendants, whose property they are in possession of, the purchase price. It would seem not to be quite fair that the.plaintiffs, holding the-property and conceding that they were hound to pay to the defendants something because they had appropriated it, should be at the same time permitted to keep the property and keep also that sum which should be awarded to the defendants as the value of it. If the plaintiffs succeed in their appeal and this order is reversed and a new appraisal ordered, the amount which is to be paid by them to the defendants may possibly be reduced, and the danger that if they pay the amount of the present award they may not be able to obtain restitution from the defendants is the only thing to be apprehended. That danger is very easily averted by requiring that the defendants, if they desire to have the amount of the award paid to them before the final determination of the appeal by the Court of Appeals, shall give to the plaintiffs a bond approved by a justice of this court in the penalty of $40,000, conditioned that, if the final order shall be reversed and a new appraisal made upon which a less sum shall be awarded to the defendants than is awarded by the present order, they will make restitution to the plaintiffs of the difference between the amount which they receive under this order and that which they shall receive under a new order, if the award shall be reduced. If the defendants desire to obtain the award upon those terms it is proper that they should be permitted to have it.

The order should, therefore, be reversed, and the stay vacated upon condition, that the defendants serve upon the plaintiffs within ten days a bond in the sum of $40,000, with two sureties approved by a justice of this court, conditioned that, if the final order appealed from shall be reversed and, upon a new appraisal, the award shall be reduced, the defendants will make restitution to the plaintiffs of the difference between the amount received under the present award and the amount which they shall receive under the new award if it shall be reduced. If such bond is given within ten days the stay shall be vacated. If not, the order will be affirmed, without costs to either party of this appeal.

Present — Barrett, Rümsey, Patterson and Ingraham, JJ.

Order reversed and stay vacated upon the conditions stated in opinion. If such conditions are not complied with, order affirmed, without costs.  