
    The City of Syracuse, Appellant, v. Richard M. Stacey and Others, Respondents.
    (No. 2.)
    
      JSmvnent domain—what offer or deposit does not prevent the recovery of costs by the owner of the property condemned.
    
    Under section 3372 of the Code of Civil Procedure, which provides that if the plaintiff in a condemnation proceeding does not make an offer to purchase The property sought to be condemned before serving the petition, the defendant is ■entitled to costs, the deposit with the court, after the commissioners have reported, of the amount of their awards, is not equivalent to the offer to purchase, although the report is set aside and the property is condemned under an ■amended petition subsequently served.
    Appeal by the plaintiff, The City of Syracuse, from .50 much of -an order of the Supreme Court, made at the Jefferson Special Term >and entered in the office of the clerk of the .county of Onondaga on the 17th day of May, 1898, confirming the report of the commis-; ■sioners of appraisal appointed in condemnation proceedings, as awards. ■costs and additional allowances, to the defendants. .....
    
      
      Charles L. Stone, for the appellant.
    
      Charles A. Hawley, Edwin Nottingham and George Barrow, for the respondents.
   Adams, J. :

Section 3372 of the Code of Civil Procedure provides that in a proceeding of this nature the plaintiff, before service of his petition and notice, may make a written offer to purchase the property at a specified price,'and that such offer must, within ten days thereafter, be filed in the office of the clerk of the county where the property is situated.

It is.also provided that, if no such offer was made, “the court shall, in the final order, direct that the defendant recover of the plaintiff the costs of the proceeding, * * * and the court may also grant an additional allowance of costs, not exceeding five per centum upon the amount awarded.”

In this case the original petition was filed on the 3d day of December, 1892, and up to that date confessedly no offer had been filed or made by the plaintiff. On the 7th day of May, Í894, the report of the commissioners appointed in pursuance of the petition and of the judgment entered thereon was duly filed, whereupon the plaintiff made a deposit of the amount awarded the several defendants. Subsequently these awards were set aside and the original petition was amended, and it is now claimed that the deposits thus made were equivalent to the offer contemplated by the provisions of the Code above referred to.

We do not think this claim is tenable. The object of such an offer as the one in question is clearly twofold : First, it enables the landowner, if he so elects, to obtain compensation for his land without incurring the expense and annoyance of a litigation, and, second, it requires him to satisfy the commissioners that his land exceeds in value, the amount offered therefor, as a condition of recovering costs of the plaintiff. It is obvious, therefore, that to accomplish either of these objects the offer must be made before the commissioners make their award; and that, as we have seen, was not done in the present case.

So far as the matter of an extra allowance is concerned it is only necessary to say that the awarding thereof rested largely in the disr cretion of the Special Term, and, in view of the protracted, expensive and severely contested litigation which characterized this proceeding, we are inclined to think that such discretionary power has, in this instance, been most wisely exercised.

So much of the order as is appealed from should be, consequently, affirmed, with ten dollars costs and disbursements.

All concurred, McLennan, J., not sitting.

So much of the order confirming the report of the commissioners as- awards costs and allowances affirmed, with ten dollars costs and disbursements.  