I am of the opinion that the court had no power to grant the order appealed from. Section 3240 of the Code of Civil Procedure authorizes an award of costs in special proceedings at the same rates allowed for similar services in actions. But this section does not empower the court to grant an extra allowance. In re Holden, 126 N. Y. 589, 27 N. E. 1063. This proceeding was not instituted under the general condemnation law, but pursuant to chapter 481, Laws 1892, and therefore the order cannot be sustained under section 3372 of the Code. Moreover, the conditions do not exist under which, alone, costs and allowance can be granted to a property owner under the latter section. That section provides for an offer by the plaintiff to purchase the property, which it proposes to take at a specified price. If the offer is not accepted, and the compensation awarded by the commission does not exceed the amount of the offpr, with interest from the time it was made, no costs can be allowed either party; and it is only when the compensation awarded exceeds the amount of the offer, with interest, as aforesaid, that the court may grant costs and an allowance to the defendant, to be paid by the plaintiff. No offer was made by the city in this case, and none was necessary under the act which authorizes this proceeding. The order must be reversed, and the motion denied.
DYKMAN, J., concurs. PRATT, J., dissents.