
    In the Matter of the Application of the Board of Street Opening and Improvement of the City of New York for and on Behalf of the Mayor, Aldermen and Commonalty of the City of New York Relative to Acquiring Title, etc., to Edgecombe Road, etc., from One Hundred and Fifty-fifth Street to a Point in the Easterly Line of Tenth Avenue, Opposite One Hundred and Seventy-fifth Street, in the Twelfth Ward of the City of New York, etc. James A. Deering, Appellant; Lillie J. Earle, Respondent.
    First Department,
    November 6, 1908.
    Attorney and client — retainer in condemnation proceedings construed.
    Where an attorney at law was retained to obtain an equitable award for the taking of. property by the city of New York on a street opening, under a contract allowing him fifty per cent of whatever sum should be awarded and confirmed on account of taking the premises over and above the amount assessed for the benefit' of the portion not taken, and pending the proceeding and’before award made the city purchased and condemned in other proceedings the remaining lands of the owner so that benefits were not assessed against her on those portions but against the city under section 980 of the Consolidation Act, the attorney is entitled to fifty per cent of the award and interest without deducting therefrom the amount which would have been assessed against the owner’s property for benefits had she continued to own it at the date of the commissioners’ report.
    Appeal by the petitioner, James A. Deering, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of June, 1908, determining the petitioner’s lien as attorney on an award made to the respondent herein.
    
      John C. Shaw, for the appellant.
    
      W. B. Symmes, Jr., for the respondent.
   Ingraham, J. :

The question presented in this case involves the construction of an agreement dated July 13, 1896, by which the respondent employed the petitioner, an attorney and counselor at law, to appear for her in proceedings instituted by the city of New York to acquire title to certain lands for the opening of Edgecombe road, and in such proceeding to take such action as to him may seem advisable to obtain a just and equitable award for the taking of the property.

The agreement then provided: And in consideration of his professional services do hereby promise, assign and agree to pay to the said Deering fifty per cent of whatever sum shall be awarded and confirmed on account of the taking of said premises over and above the amount assessed for benefit in this proceeding against my premises fronting thereon. It being agreed and understood that in case no award or allowance shall be made and confirmed therefor in excess of the amount so assessed the said Deering shall receive nothing.” The appellant proceeded .before the commissioners and presented proof as to the value of the respondent’s property, the presentation of proof closing on June 5, 1897. On January 26, 1898, the commissioners filed their report. The corporation counsel filed objections to the report of the commissioners and the court refused to confirm the report and sent the case back to new commissioners. The appellant then appeared before the new commissioners, submitted additional proof in. respect to the . damages claimed by. the respondent- and others, and by the new report the commissioners awarded to the respondent the sum of $14,284.15 as the value of the respondent’s land taken,-for the said road, which report was duly confirmed on December 4, 1907. By reason of the confirmation of this report the respondent became entitled to the sum of $14,284.15 with interest from the 28th of December, 1894, until the date of payment, and this amount was subsequently paid to the respondent amounting in all to the sum of $25,692.42. It also appeared that in the year 1903 the city of Hew York purchased from the respondent the property that she owned on the west side of Edgecombe róad, and which was adjacent to the ■ property taken by this proceeding, for a public park and the respondent conveyed this property to the city of New York on the . 21st of October, 1903. During the same year the city of Hew York took proceedings to acquire title to the land of the respondent on the east side of' the said road as a public park and commissioners of appraisal were appointed, and on the 9th of December,-1904, the title to this property vested in the city of Hew'York. Before this proceeding was completed, therefore, - the city of Hew York had acquired title to all of,-the lands of the respondent which was subject to assessment for benefit in this proceeding and this respondent had no longer any land upon which an assessment could be imposed.

By section 980 of the Consolidation Act (Laws of 1882, chap. ■ 410), which was continued in force by section 995 of the charter of 1897 (Laws of 1897, chap. 378) and section 995 of the charter of 1901 (Laws of 1901, chap. 466) it is provided, in the language óf the charters, referring to proceedings to acquire title to public streets in the city of Hew York, that: “ It shall not, however, be lawful -to lay or impose any assessment whatever on any public park, square, or place, or street, road- or avenue, but all such assessments which may be properly payable by the city shall be assessed against it in a gross sum in each and every such proceeding.” In accordance with this provision the commissioners made no assessment against any of the property that had been acquired by the city, but assessed against the city a gross sum of $154,899.09 for and on account of the benefit to the lands owned by the city within the area of assessment.

The question here presented is whether under the agreement the ■petitioner is entitled to one-half of the gross award made by the city of New York, including the interest thereon, or whether there should be deducted from the award to which the petitioner is entitled fifty per cent of the amount which would have been assessed against the property of the respondent had she continued to own it up to the date of the commissioners’ report. At the time that this contract was made the respondent was the owner of a strip of land through which the proposed road had been laid out, so that after the opening of the road she would own property abutting on each side of the road which would be subject to an assessment for benefit. The petitioner agreed that he would conduct this litigation for the respondent for fifty per cent of the net amount that the respondent would receive after paying whatever assessments were imposed upon her property. The contract was that the petitioner was to receive fifty per cent of “ whatever sum shall be .awarded and confirmed on . account of the taking of said premises over and above the amount assessed for benefit in this proceeding against my premises fronting thereon.” If no sum was assessed for benefit and that, of course, includes a legal assessment which would become a lien upon the property so that the respondent would have to pay it, then of course there was to be no deduction from the gross sum awarded for the property taken. It is quite apparent, I think, that if the commissioners had attempted to assess upon the respondent’s property a sum of money for the benefit in consequence of the opening of the road, and the assessment should have been set aside because of an irregularity so that the respondent had not been compelled to pay it, the appellant would have been entitled to fifty per cent of the award without any deduction. The city of New York actually acquired the fee of the property abutting on both sides of the street before any award was made to the respondent. ‘ The moment that title vested in the city of New York by provision of the charter there could be no assessment upon-the respondent or upon her property. The city of New York was compelled to pay whatever amount the commissioners would have assessed upon the property acquired by the city of New York if the respondent had continued to own it, but there was no assessment imposed and there could be no assessment imposed. Taking the literal meaning of the agreement, therefore, ¡the respondent was not entitled to deduct any amount from the gross award as nothing had been assessed upon the respondent’s property. . •

I think that this was in accord with the intent of the parties. The respondent intended that there should be paid out of the award whatever assessment was levied upon her property and that the balance should be equally divided betweeú herself and the petitioner. In consequence of her sale of this property to the city of Mew York she will receive the entire award for tile property taken without being compelled to pay any portion of it for an assessment for benefit. So far as the" interest is concerned I think the petitioner is also entitled to fifty per cent of that. Whenever an award was made' it related hack to the timé the property vested in the city. Before' this contract was made the property had so vested and the owner of the property taken would be entitled to the value of the property at the time it was taken, and interest on that value down to the time of payment. ' As the petitioner was entitled to one-lialf of the award he was entitled to it as of the date when the property was taken, and being entitled to it at that time he would be entitled to interest on it until the same was paid. Whether we treat the amount fixed including the interest as the value of the property takeh, the amount fixed for the property as the award, and the interest as an incident to the right to receive it, it amounts to the same thing, because if the petitioner was entitled to fifty per cent of the award when made, he would also be entitled to interest on that sum as incidental to the same until it was paid.

Our conclusion, therefore, is that the order appealed from must be modified by awarding the petitioner one-half of the amount actually awarded for the lands taken and the interest thereon, and as so modified the order is affirmed, with ten dollars costs and disbursements to the appellant.

Patterson, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements to appellant. Settle order on notice. 
      
      See, also, Laws of 1906, chap. 658.-^ [Rep. .
     