
    In the Matter of the Application of The Manhattan Railway Company, Respondent, v. Thomas J. McKee and Another, as Executors, etc., of Matthew Byrnes, Deceased, and Others, Appellants, Impleaded with Others.
    
      Condemnation Law—failure to make an offer — where the defendant cannot'convey, the plaintiff is not chargeable with costs.
    
    Tile provisions of the Condemnation Law contained in section 8872 of the Code of Civil Procedure, that the plaintiff before serving his petition and notice may make a written offer to purchase the property at a specified price, and further that if no offer is made the court shall in the final order direct that the defendant recover the cost of the proceeding, and may also grant an additional allowance, do not apply to a situation where the defendants are under a legal disability to convey.
    ■Under such circumstances an offer would be an idle ceremony, and, therefore, the reason for charging a plaintiff with costs for not making an offer entirely fails.
    Appeal by the defendants, Thomas J. McKee and another, as executors, etc., of Matthew Byrnes, deceased, and others, from so much of 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 12th day of November, 1895, as denies their motion for costs and an extra allowance.
    The proceeding was instituted under the provisions of chapter 23 of the Code of Civil Procedure to acquire title to real estate in the city of New York. It is conceded that the defendants were, for various reasons, under legal disability to convey title to the property taken. It is apparent, therefore, that no offer to purchase the •property could be made by the plaintiff under section 3372 of the Code. The same section provides that if no offer was made the court should, in the final order, direct that the defendant recover of the plaintiff the costs of the proceeding, and might also grant an additional allowance of costs, not exceeding five per cent upon the amount awarded. The question is whether this latter provision applies to a case where, under the former provisions of the section, no offer could be made.
    
      William P. Page, for the appellants.
    
      Julien T. Dmies and William H. Qodden, for the respondent.
   Williams, J.:

We are of the opinion that the proper construction of the statute (Code Civ. Proc. 3372) is that the court shall direct the recovery of costs only in a case where an offer could have been made but was not made. It does not seem to us that the Legislature intended that the plaintiff should be charged with costs for not making an offer, which, under the statute, it had no right to make. The obvious intention is to provide indemnity to the owner who has been subjected to the expense of protecting his interests in a legal proceeding, in case of a failure to make the preliminary offer, and thus to give an opportunity to the owner to accept such offer and convey the property without the institution of the proceeding. Where, however, there is a legal disability to convey, not only is an offer not provided for by the statute, but it would be an idle ceremony and of no avail even if it could be made, and, therefore, the whole reason for charging plaintiff with costs fails.

It is claimed that the Supreme Court in this department has allowed costs in one case and disallowed them in another case, where precisely this condition of things existed. In neither of these cases* however, was the question fully considered or deliberately passed upon.

We now feel compelled to give the construction to the statute here stated, and to hold that the adult defendants in this case are not entitled to costs.

The order appealed from should he affirmed, with costs.

Yah Brunt, P. J., Rumsey, Patterson and O’Brien, JJ.* concurred.

Order affirmed, with costs.  