This is an appeal from an order of the surrogate refusing to make á decree or order that an administrator pay a certain judgment obtained against him. In answer to the petition the administrator showed that the judgment was based upon the assignment of a distributive share of the estate; that in December, 1904, when the action was begun which went to this judgment, the accounting had *68been filed and marked for decree in the absence of objections, and that the decree was afterwards entered, although he does not show the, time of such entry. The administrator further showed that the distributive share was $115, a sum less than the judgment, which the administrator stood ready to pay. The surrogate denied the , application, without opinion.
The difficulty in the way of an affirmance is twofold. First,.] if the denial of the application Was based upon the provision of section 1826 of the Code of Civil Procedure, “ Where it appears that the assets, after payment of áll sums chargeable against them for expenses, and for claims entitled to priority as against the plaintiff, are not, or will not be, sufficient to pay all the debt's, legacies or Other claims of the class to which the plaintiff’s claim belongs, the sum directed t,o be collected by the execution shall not exceed the plaintiff’s just proportion of the assets,” we are confronted by an order of February 24, 1905, entered in. the Surrogate’s Court, granting leave to the petitioner to issue execution upon his judgment which order/ except on appeal therefrom, is conclusive evidence of assets applicable to the judgment. (Code Civ. Proc. § 2552.) Second, if the denial of this application was based upon the conclusiveness of the decree, it does not appear in these proceedings by allegation, recital or'reference'(and the basis’of the order was .simply the petition and the answering affidavit) that the petitioner Was bound by such decree as being either a party to the' accounting or as having been served with notice of ’the proceedings, yet the .administrator admits that the assignment of the beneficial interest' ■ Was made in August, 1904, and duly filed in the office of the surrogate and hence in ■ effect that the petitioner was a proper party. (Code Civ. Proc. § 2806.) The burden was upon the -adminis-, trator to show that the petitioner was bound by the decree! (Redf. Suit, [6th ed.] § 1081, and authorities cited.)
The order must be reversed, with ten dollars costs and disbursements, and motion granted. -
Hirschberg, P. J., Bartlett, Woodward and Rich, JJ., concurred.
Order of the Surrogate’s Court of Kings county reversed, with ten dollars costs and disbursements, and motion granted, with costs.