
    JAMES A. DEERING, Respondent, v. THOMAS J. McCAHILL, Appellant.
    
      Contract, for legal services to be performed, at discretion—entirety of— evidence sustaining action on—non-performance within contract time, waiver of—quantum meruit, effect of evidence of, in action on contract— construction.
    
    The contract was that plaintiff should take such legal proceedings as to him should seem fit to secure the vacation or reduction of divers specified assessments and to recover back all payments made or which should be made in respect thereof. The evidence showed that plaintiff took proceedings successfully as to some of the assessments; there was also evidence to the effect, that as to the others, any proceeding taken would have ended adversely, and reasons were given for not proceeding. Held, sufficient to sustain a verdict for plaintiff, in an action to recover com pensation for his services.
    
      
      Decided February 2, 1885.
    The defendant assented to proceedings going on after the day fixed by the contract for their completion, and in one instance took part therein, ’and he did not claim the contract was at an end until suit was threatened. Held, the contract was not avoided.
    It was claimed the plaintiff’s proceedings, so far as they were successful, were so only by reason of an act passed since the contract was made, and, therefore, that plaintiff could not recover the contract, but only on a quantum meruit. Held, that assuming this to be correct, yet as the undisputed evidence showed that the services were worth the amount that the contract, specified, a verdict for that amount would not be disturbed.
    In the construction of provisions of contract as to payment for services, the phrase “sum due for said assessments,” comprises interest on their first amounts.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    This action was brought on a contract to recover the contract price for services rendered.
    This contract was as follows :
    “I hereby retain James A. Deering, counsellor.at law,
    ■ to take such legal proceedings as to him shall seem fit to secure the vacation or reduction of the assessments upon the premises hereinafter set forth, for regulating, &c., the Boulevard, confirmed December 29, 1876, and the Riverside Park Opening, confirmed August 2, 1872, and to recover back all payments made or which shall be made in respect of said assessment on said premises ; the said proceedings must be completely ended by the first of January, 1881. And in consideration of such service, I agree to pay to said Deering twenty-five (25) per cent, of the amount which the sums due for said assessments shall be reduced ; and in case no reduction shall be obtained within said time, the said Deering shall receive nothing in respect of his services' herein. And it is understood and agreed that I shall have the right to pay all or any of said assessments upon said premises unpaid, and if I shall hereafter pay a portion or the whole of any such assessments, and he shall not be able to recover the money so paid, that he shall be paid nothing, and have no charge or claim against me for services or costs, or expenses on account of the assessment, or the portion thereof which shall have been paid.” (Here followed a schedule of the assessments referred to.)
    On the trial, after the plaintiff had clsoed his case, defendant’s counsel moved for a nonsuit on the following grounds:
    “First : That the plaintiff has shown no performance of the contract of retainer. Second : That the plaintiff has shown no performance of the written contract; in this, that the contract of November 26, 1876, is an entirety and contemplating professional services in reference to assessments upon six parcels of property, and plaintiff is not entitled to recover under the contract for services • rendered in reference to the assessments mentioned in the complaint, without showing that he took proceedings in reference to the other assessments mentioned in the contract. Third : That the plaintiff cannot recover the stipulated compensation under the contract for services in reducing the assessments mentioned in the complaint without showing a good reason for not proceeding to remove the other assessments or to recover back the money. Fourth : That the plaintiff shows that the contract was not performed within the time specified, and therefore he is not entitled to recover the contract stipulation, but only a quantum meruit. Fifth : That the law under which the plaintiff secured this reduction of the assessment was not in existence at the time the contract of retainer was entered into and therefore not in contemplation of the parties. Sixth : That for services rendered under that act plaintiff is not entitled to the contract amount of compensation, but only to a quantum meruit.”
    
    The motion was denied and defendant excepted.
    The defendant rested, and then asked the court to direct-the jury to render a verdict for the plaintiff for the sum of $390.03, with interest thereon from December 30, 1882, that being one-fourth of the reduction, excluding interest, from those items, which motion and request the court refused, and to which decision defendant’s counsel duly excepted.
    The court thereupon directed the jury to find a verdict for the plaintiff in the sum of $939.39, to which direction defendant’s counsel duly excepted, and thereupon the jury so found.
    From its judgment entered on the verdict defendant appeals.
    Other facts appear in the opinion.
    
      Sheldon & Brown, attorneys, and De Witt C. Brown, of counsel for appellant,
    argued :—I. The contract in this case bound plaintiff to institute all such proceedings as were ordinary, or usual, or reasonably adapted to the end proposed, such as a jury would say were reasonable, and such as a court might presume were fairly ex]Dected by the defendant (Livingston v. Tyler, 14 Conn. 494; Milldam Foundry v. Hovey, 2 Pick. 417; Del. L. & W. R. R. Co. v. Bowne, 47 N. Y. 578; Lawson v. Bachman, 81 Ib. 616, 617). The contract of retainer was an entirety, and no recovery could be had for services in reducing two assessments, without showing a reasonable effort to recover back the others, and it was not for plaintiff to say that such effort would be futile. That is not the question. He had' not undertaken to be successful in any, but had agreed to make a reasonable effort in all. The defendant by his contract had placed the matter of these six assessments wholly in the hands of plaintiff; the defendant had no longer any control over them, and could not employ another attorney. To assume then that plaintiff had the right to initiate proceedings upon some, and omit proceedings upon other assessments, as he might capriciously elect, is necessarily to assume that he had not agreed to do anything. There is no middle ground ; either he agreed to take proceedings, or there was no agreement on his part that bound him to anything. This conclusion is wholly inadmissible. The ground upon which the doctrine of entirety rests, says Story, is that the performance of the whole is the essential consideration of the contract, and is a condition precedent to the payment of any part of the price (Story on Cont. §§ 22, 23; Clark v. Baker, 5 Metcalf, 452). The plaintiff agreed to "take proceedings in six cases and close them in a specified time for 25 per cent, upon the total reduction and recovery ; how then can it be determined what he is entitled to till he has exhausted proceedings in the six cases ? The contract was manifestly an entire one (Atwood v. Norton, 27 Barb. 638 ; Willson v. Martin, 1 Den. 602; Anderson v. West, 38 Super. Ct. 441).
    II. Under the contract, plaintiff was bound to take proceeding, even though satisfied he could not succeed in recovering back the assessments.
    III. The plaintiff admits that he did not accomplish any thing to entitle him to compensation within the time limited by the contract, but claims that defendant extended his time for concluding proceedings” in the Boulevard case and supplied an affidavit. But defendant claims that this entitled plaintiff not to the contract price, for the contract had not been performed, but to a quantum meruit only, especially as the contract had not been performed by plaintiff in respect to the Riverside assessments.
    IV. It was conceded by plaintiff that the reduction for which he claims 25 per cent, under the contract was effected under a statute passed long subsequent to making the contract. The contract then was not made with reference to this law, and the same could not have been in contemplation of the parties, and the plaintiff was not ■entitled to the contract price of compensation under the circumstances. Suppose the legislature had enacted that the assessment was wholly illegal and forbid its collection and canceled its hens, could plaintiff have recovered one quarter the amount; most certainly not, even though he proved he was the parent of the act and procured its passage. No more can he claim the stipulated compensation for services under the present act. He was entitled to recover what his services were worth and no more. That would be just and equitable. The exception to the refusal to non-suit on the ground was well taken.
    The verdict was for too much. The contract specified four assessments which had been paid, and specified the amount of interest on each which was added to the assessment for the purpose of fixing the amount upon which the percentage to plaintiff, in the event of success, should be computed. In the other two cases the amount of the assessment only is mentioned, although two years interest was due thereon at the date of the contract. The omission of the interest under such circumstances, fixes the amount of those assessments- for the purpose of compensation, and modifies and controls the general language of the contract, in reference thereto.
    Interest upon the assessment is an incident, and no part of the assessment proper, but is in the nature of damages for its non-payment, and in the case of an unpaid assessment could not* be taken into account, under any circumstances, under this form of contract, although the city had a lien upon the land for its non-payment. This principle has been recognized in a variety of cases. The court may grant an extra allowance of costs of five per •cerit. upon the amount in controversy, but interest 'cannot be added to plaintiff’s claim in the action to ascertain the amount in controversy.
    Appeals may be had to the court of appeals in controversies, arising in inferior courts, where the amount involved was $500. But the court of appeals has always held that interest, cannot be added to the recovery or claim, for the purpose of rendering the judgment appeal-able to that court, and so in similar cases of construction.
    The contract of retainer is certainly capable of the interpretation we give it, and in such a case, where the controversy arises between an attorney and his client, “if the meaning is not transparently obvious, if it will admit of a construction favorable to the client, he is entitled to that construction (Hitchings v. Van Brunt, 38 N. Y. 342).
    
      James A. Peering, in person,
    argued :—I. The contract was severable, and for the reduction of the Boulevard grading assessment the plaintiff was entitled to recover (2 Parsons Contr. 517; Robinson v. Green, 3 Met. 159 ; Swift v. Opdyke, 43 Barb. 274 ; Mayor v. Pyne, 3 Bing. 235 ; Sickels v. Pattison, 14 Wend. 256 ; Tipton v. Feitner, 20 N. Y. 423).
    Performance as to the Riverside park assessment was excused by act of the law. This appears as a fact from the testimony. It is also apparent as matter pf law. The assessment in question was for opening Riverside Park. An “ opening ” is the acquisition of title for the purposes named under the statute, and an assessment for opening is the sum fixed by the commissioners of estimate and assessment and confirmed by the supreme court as the amount of benefit thereof to the parcel assessed. It is in the nature of a judgment, and cannot be reconsidered, reviewed or disturbed in any subsequent action or proceeding (In re Arnold, 60 N. Y. 26 ; De Peyster v. Mali, 92 Ib. 262 ; In re Dept. of Parks, 73 Ib. 560 ; In re Riverside Park, 50 Ib. 493). No proceeding to vacate or set it aside could or can be maintained. As it could not be questioned directly or collaterally an action to recover the same where paid would not lie. To recover back money paid on an illegal assessment there must first be a vacating of the assessment by judicial power (Pyser v. The Mayor, 70 Ib. 497 ; Wilkes v. The Mayor, 79 Ib. 621). t£ the law prevents recovery it excuses performance. It was not necessary to bring a proceeding which could not be prosecuted or maintained with any hope of or reason for success. •
    II. That the special law under which the proceeding was instituted was not in existence when the contract was signed is wholly immaterial. 1st. The plaintiff was by the contract entitled “to take such legal proceedings as to 
      
      him shall seem fit to secure the vacation,” &c., of the assessment. ■ He was not confined to any form of procedure or any court. It was not only the plaintiff’s right, hut his professional duty to take action under the special law-named, when, as it appears by the testimony, no relief could be obtained in the courts. An attorney in the management of a litigation is not confined to the laws in force at the time retained, but should avail himself of all passed during and until the termination thereof. Had the plaintiff obtained the passage of an act directly reducing the assessment, he would have been entitled to payment under the contract. So of services under an act providing a remedy or new form of procedure for the same purpose (In re Knapp, 85 N. Y. 296).
    III. The refusal of the court to direct the jury to render “a verdict for the plaintiff for the sum of $390.03, with interest thereon from December 30, 1882, that being one-fourth of the reduction excluding interest from those items,” was just and proper. The phrase sum or amount “due for said assessments” is readily understood and is not doubtful. An unpaid assessment always includes and carries interest. Both make up the “amount due.”
   By the Court.

Sedgwick, Ch. J.

The first ground claimed for reversing the judgment, was, that the plaintiff’s obligation to take proceedings in the six cases mentioned in the written contract, was entire, and that there could be no compensation for proceedings taken in some of the cases when proceedings had not been taken in the rest. This assumes that plaintiff’s omitting to take proceedings, and such was the case, was a default in a part of his obligation.

The defendant agreed to pay the compensation in consideration of “such service,” in the words of the contract. These words can only refer, to the former clause, “I hereby retain James A. Deering, to take such legal proceedings as to him shall seem fit to secure, etc.” The services were intended to be such as it would be the duty of the lawyer to perform, after a retainer, in respect of its subject matter. The retainer was to take such proceedings as the counsel saw fit. The implication is, that unfit or inefficacious proceedings were not to be taken. It cannot be imagined that the defendant intended to bind the plaintiff to take in defendant’s name, a proceeding, which would end adversely to him, with the burden of paying costs. The plaintiff gave testimony to show that in the cases where he took no proceedings, any proceeding, if taken, would have ended adversely to the defendant. He took proceedings successfully in the other cases. This showed, in my opinion, an entire performance on the part of plaintiff. No question of fact or law was made at the trial as to whether the plaintiff had shown that in the cases where no proceedings were taken, none could have succeeded. The point was, that the plaintiff was bound to take proceedings in all the cases. This is not correct. The defendant’s counsel, however, gave as one of the grounds of a motion to dismiss the complaint, that the plaintiff could not recover, without showing a good reason for not proceeding to remove the other assessments, or to recover back the money. The plaintiff had in fact, in his testimony, given reasons for not proceeding. It was assumed by the plaintiff, that reasons or good reasons must be given. His testimony on this point made at the last a question for the jury.

The next objection is, that the plaintiff did not accomplish anything to entitle him to compensation within the time limited by the contract, which provided that proceedings intended by it must be completely ended by January 1, 1881. The proceedings were not completed at that day, but were continued after it. There was proof that the defendant assented to their going on after the day, and in one particular took part in them. He did not at the time, nor until this action was threatened, claim that the contract was at an end. The contract was not avoided, and the plaintiff could recover compensation under it (Gallagher v. Nichols, 60 N. Y. 448).

It is maintained that the proceedings were successful, by reason of an act passed after the written contract was made, and that the contract was intended by the parties to refer to the state of the law, as ifc was when the contract was made, and that from this consideration, the plaintiff could not recover under the contract, but at the most quantum meruit. Assuming this to be correct, there was evidence in the case that the services were worth the amount that the contract specified. The defendant promised to pay the amount when it was demanded by the plaintiff in the presentation of a bill, and asked the plaintiff to get it, if he could, from another person who held certain moneys that the defendant thought should be applied to the payment of the bill. This promise is circumstantial evidence of the value of the services, and has a peculiar significance in this case where defendant is himself a lawyer. The defendant, however, gave no evidence as to the value of the services.

The plaintiff recovered 25 per cent., not only of the reduction of the amount of the assessment, as it was first made, but also of the reduction of the interest, that followed the reduction of the assessment. This is attacked, on the ground that the contract was, that the percentage should be upon the reduction of the assessment itself. This is sufficiently met by the words of the contract which were 25 per cent, of the amount which the sum due for said assessments shall be reduced.” The sum due for the assessment, comprised the interest upon its first amount.

Judgment affirmed, with costs.

O’Gorman, J., concurred.  