
    (1 App. Div. 488.)
    MANHATTAN RY. CO. v. McKEE et al.
    (Supreme Court. Appellate Division, First Department.
    February 7, 1896.)
    Condemnation Proceedings—Right op Defendants to Costs.
    Condemnation Law (Code Civ. Proc. e. 23), § 3372, provides that, where1 the owner is a resident and not under legal disability to convey, plaintiff, before service of his petition and notice, may make a written offer to-purchase the property at a specified price; that if the offer is not accepted, and the award by the commissioners does not exceed the amount of the offer, with interest, no costs shall be allowed to either party; that if the award exceed the amount of the offer, with interest, or if no offer was made, defendant shall recover the costs at the same rate as is allowed to defendant when he is the prevailing party in an action in the supreme court, and an additional allowance, not exceeding 5 per cent, of the amount awarded. Held that, 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 special term, New York county.
    Petition by the Manhattan Railway Company against Thomas J. McKee and Fernando Baltes, as executors and trustees under the will of Matthew,Byrnes, deceased, William J. Byrnes and others, adults, and Ida Marie Clausson Rayner and o+hers, infants, and the Seamen’s Bank for Savings, to acquire title to certain real estate under the provisions of the condemnation law. From so much of the order of the special term as denied the adult defendants, their right to costs and an additional allowance, they appeal. Affirmed.
    The proceeding was instituted under the provisions 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 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 3372 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, 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.
    Argued before VAN BRUNT, P. J., and RUMSEY, WILLIAMS, PATTERSON, and O’BRIEN, JJ.
    William R. Page, for appellants.
    Davies, Stone & Auerbach, for respondent.
    
      
       Code Civ. Proc. c. 23 (.known as the “Condemnation Law”), § 3372, provides as follows: “In all cases where the owner is a resident and not under legal disability to convey title to real property, the plaintiff", before service of his petition.and notice, may make a written offer to purchase the property at a specified price, which must within ten days thereafter be filed in the office of the clerk of the county where the property is situated; and which cannot be given in evidence before the commissioners, or considered by them. * * * If the offer is nol accepted, and the compensation awarded by the commissioners does not exceed the amount of the offer, with interest from fhe time it was made, no costs shall be allowed to either party. If the compensation awarded shall exceed the amount of the offer, with interest from the time it was made, or if no offer was made, the court shall, in the final order, direct that the defendant recover of the plaintiff the costs of the proceeding, to be taxed by the clerk, at the same rate as is allowed, of course, to the defendant when he is the prevailing party in an action in the supreme court, including the allowances for proceedings before and after notice of trial, and the court may also grant an additional allowance of costs, not exceeding five per centum upon the amount awarded. * * * If a trial has been had, and all the issues determined in favor of the plaintiff, costs of the trial shall not be allowed to the defendant, but the plaintiff shall recover of any defendant answering, the costs of such trial caused by the interposition of the unsuccessful defense, to be taxed by the clerk at the same rate as is allowed to a prevailing party for the trial of an action in the supreme court.”
    
   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 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 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 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 ease are not entitled to costs.

The order appealed from should be affirmed, with costs. All concur.  