
    Albert A. Raphael, Appellant, v. New York State Realty and Terminal Company et al., Respondents.
   Cohn, J.

(dissenting). Plaintiff is suing to recover compensation for legal services rendered in procuring for defendants a refund of real estate taxes obtained in a certiorari proceeding amounting to over $82,000. The lessee of the the premises had the right to institute the proceeding for itself and in behalf of defendants. The agreements of lease, plaintiff’s Exhibits 1 and 2, as well as the contract assigning the leases, plaintiff’s Exhibit 3, upon which defendants rely, were drawn by them. The language employed, that all costs and expenses in connection with such certiorari proceedings ” were to be borne by the lessee of the premises, was not clear with respect to whether such costs and expenses included contingent counsel fees in the certiorari proceeding.

It is urged by plaintiff that the parties for whom he had created the fund knew that such moneys, if recovered, would be burdened with a contingent charge for counsel fees-; that each participant therein would be liable for its proportionate share of his fee and that the words used in the agreements include all costs' and expenses, but not counsel fees. The words employed permit of different inferences and reasonable men might well disagree as to their meaning and effect. A determination of the true intent of the parties in using the ambiguous language was for the jury and not for the court. (O’Neil Supply Co. v. Petroleum H. & P. Co., 280 N. Y. 50, 55; Burrage v. County of Bristol, 210 Mass. 299, 300; Lamb v. Norcross Brothers Co., 208 N. Y. 427, 431; Utica City Nat. Bank v. Gunn, 222 N. Y. 204, 207, 208; White v. Hoyt, 73 N. Y. 505, 512.) Moreover in the circumstances of this case, the court should not have barred evidence offered to explain what the parties meant by the expression in question.

The judgment should be reversed and a new trial ordered.  