
    Manhattan Railway Company, Resp’t, v. Thomas J. McKee et al., as Executors, etc. et al., Appl’ts.
    
      (Supreme Court, Appellate Divison, First Department,
    
    
      Filed Feb. 7, 1896.)
    
    1, Condemnation proceedings—Costs.
    Under the condemnation law (chapter 33 of the Code) the court shall direct the recovery of costs only in a case where an offer to purchase the property at a specified price could have been made, but was not made.
    3. Same.
    Where the owners are under legal disability to convey, they are not entitled to costs and the additional allowance of 5 per cent, on an award, though no offer to purchase was made by the petitioner.
    Appeal from so much of the order of the special term as denied the adult defendants their right to costs and an additional allowance.
    The proceeding was instituted under the provisions of the Code of Civil Procedure to acquire title to real estate in the city of Kew York. It is conceded that the defendants were, for various reasons, under legal" disability to convey the title of the property taken. It is apparent, therefore, that no offer to purchase the property could be -made by the plaintiff, under section 8S72 of the Code. The same section provides that, if no offer was made, the court should direct that the defendant recover of the plaintiff the costs of the proceeding, and might also grant an additional allowance of costs, not exceeding 5 per cent, lipón 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 R. Page, for app’lts; Davies, Stone & Auerbach, for resp’t.
   WILLIAMS, J.

—We are of the opinion that the proper construction of the statute 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 stature, it had no right tamake. The obvious intention is to provide indemnity to the owner who has been subjected to the expense of an investigation, 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 proceedings. 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 ideal 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 tó hold that the adult defendants in this case are not entitled to costs.

The order appealed from should he affirmed, with costs.

All concur.  