February Term, 1896.
William R. Page, for the appellants.
Julien T. Davies and William H. Godden, for the respondent.
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 be affirmed, with costs.
VAN BRUNT, P.J., RUMSEY, PATTERSON and O'BRIEN, JJ., concurred.
Order affirmed, with costs.