
    The People of the State of New York, Respondent, v. William Thornton and Others, Defendants, Impleaded with Aran Vail, Appellant.
    Third Department,
    November 13, 1907.
    Eminent domain—when lessee entitled to costs.
    One holding an unexpired lease of lands taken by eminent domain is an “ owner ” within the meaning of section 3358 of the Code of Civil Procedure, and if a resident and under no legal disability to convey his title is entitled to costs under section 3372 of the Code of Civil Procedure if an offer to purchasé has not been served upon him.
    Appeal by the defendant, Aran Vail, from so much of an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 8th day of July, 1907, as denies the said defendant’s motion for costs and an extra allowance in the above-entitled condemnation proceeding.
    
      Buchanan, Lawyer & Whalen [Robert E. Whalen of counsel], for the appellant.
    
      W. S. Jackson, Attorney-General [Charles P. Williams, Deputy Attorney-General, of counsel], for the respondent.
   Kellogg, J.:

The appellant was a lessee of a part of' the premises condemned and his unexpired term of two years was valued by the commissioners at $120'. He was an owner within section 3358 of the Code of Civil Procedure, which defines an owner as including “ all persons having any estate, interest- or easement in the property to be taken or any lien, charge or incumbrance thereon.”

If the owner is a resident, and not under legal disability.to con-

vey title to real property, and an offer to purchase is not served. upon him, then he is entitled to costs under section 3372 of the Code of Civil Procedure.. This does not limit the meaning-of the word “ owner,” as '.used in that -section, to the owner of the fee. Section 3358 recognizes that one party may own the- fee, another an easement, another a. leasehold, another may have a charge or incumbrance upon the. same parcel -of land, but it recognizes each as an owner. An offer must be made to any party whose interest is sought to be condemned, if the person is a resident of the State and. is capable of conveying that interest. Where there is an outstanding lease, the owner of. the fee cannot convey the entire estate,- but he can convey the interest he has. The same is true "of-the tenant.

One is entitled to the notice as much as the other. Each owner is entitled to the offer to purchase, and in the absence of.it to costs, if he is a resident of the State and is capable of conveying the interest in the real estate which he has. The public is taking away from the unwilling owner his property, and if it does not offer to each person interested in it the fair value ■ of his interest,, there is no reason- why it should not pay to him the costs which have been caused by its neglect to make the offer.

- . -The order, so far as it denies costs to the appellant, 'should. be reversed, with ten dollars costs, and his application for. costs should be granted.

All concurred.

Order, so far as it denies costs to appellant, reversed, with ten dollars costs and disbursements, and Ins application for costs granted  