
    United States Title Guaranty and Indemnity Company, Respondent, v. Louis A. Marks and Alfred C. Marks, as Executors, etc., of Esther B. Marks, Deceased, Appellants.
    First Department,
    December 7, 1906.
    Contract — agreement to procure reduction of assessment for commission — when plaintiff entitled to recover — executors and administrators — when estate, not heirs, liable on contract.
    The defendant’s testatrix entered into a contract with the plaintiff whereby the latter was to represent her by its attorney “ to reduce any assessment that may be levied against her property,” for which services the plaintiff was to receive one-quarter of any reduction which might be obtained. At the time of the contract the improvement had been projected and a resolution had been adopted by the board of street opening that the entire cost be assessed upon the property benefited. Subsequently the commissioner’s estimate of the assessment in which the testatrix’s lot was assessed was presented to the court •for confirmation but was sent back for a further hearing and new report. ■Thereafter the board rescinded the prior resolution and resolved that one-half of the expense be borne by the city, which assessment was confirmed. In the various hearings relative to the assessment, plaintiff had appeared representing the testatrix and was active in persuading the board to adopt the resolution reducing the assessment.
    
      Held, that the contract must be construed so as to treat the first proposed assessment as the one which the plaintiff was employed to reduce;
    That the plaintiff was entitled to recover its share of the reduction effected;
    That the contract was a personal one, and, as the services leading to the reduction had been substantially completed before the death of the testatrix, her-estate was liable on the contract and not the heirs or devisees.
    Appeal by the defendants, Louis A. Marks and another, as executors, etc., from a judgment of the Supreme Court .in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of January, 1906, upon the verdict of a jury, and also from an order bearing date the 26th day of January, 1906, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes.
    
      Jacob Fromme, for the appellants.
    
      Adolph C. Hottenroth, for the respondent.
   Scott, J.:

Defendants’ testatrix, Esther B. Marks, was, on September 30,1897, the owner of seven lots on East One Hundred and Thirty-eighth street, in the city of New York, and on that day executed the contract upon which this action is brought. That contract, which was apparently upon a printed form, contained some blanks which were not filled up, but, ás it is, it sufficiently embodied the agreement. It contained a caption “ In the Matter of the reduction of assessments in West 138th St.,” the word “West” being cOn.cededly intended to -be “ East.” It recited that Mrs. Marks, owner of the lots “ proposed to be assessed for the above widening and improvements,” authorized -the People’s Guaranty and Indemnity Company (assignor of plaintiff), by its attorneys, to represent her “to reduce any assessment that may be levied against” her property, and for the services rendered and disbursements paid or incurred she agreed to pay the People’s Guaranty and Indemnity Company one-quarter of the reduction made, it being stipulated that no charge should be made by said company or its attorneys for such services or disbursements unless a reduction should be obtained. It is important "to observe that this contract did not purport to deal with or refer to any existing assessment. It recited -that an assessment was proposed to be laid, and the service contracted for was the reduction of any assessment that might thereafter be levied against the property. It appears that the improvement had been projected), and that, on July 6, 1894, the board of street opening and improvements, the board then having jurisdiction in the premises, had-adopted a resolution providing that “ the entire cost and expense of such proceedings shall be assessed upon the property deemed to be benefited thereby.” The situation, therefore, as it existed when the contract was made, was that East One Hundred and Thirty-eighth street was to be widened, and that Mrs. Marks’ property, along with other property deemed to be 'benefited, was to bear the entire cost and expense thereof, and it is with reference to this situation that the contract must be construed. It appears that ■ commissioners of estimate and assessment, appointed to ascertain and assess the cost off the improvement, made a preliminary or tentative estimate in February, 1898, and a final report dated. February 26, -1900, which was presented to the Supreme Court for confirmation on July 27, 1900. Confirmation was denied and the matter referred back to the commissioners-of estimate and assessment for further hearing and a new report. In the report submitted to the court on July 27, 1900, each of Mrs. Marks’ lots was proposed to be assessed for $1,557.60 as its proportionate share of the cost and expense of the improvement, and although the fixation and report of snch an assessment cannot be said to amount legally or technically to the “levy” of an assessment, we are of opinion that a fair construction of the contract requires us to treat this proposed assessment as the one of which the People’s Guaranty and Indemnity Company were employed to obtain a reduction. It certainly was an amount for which-the property was “proposed to be assessed,” and if we should construe the words “ any assessment that may be levied ” against the property as referring only to an assessment finally confirmed and filed in the comptroller’s office so as to become a binding lien upon the property, it would render the contract futile and meaningless. On March 14, 1900, after the date of the final report of the commissioners of estimate and assessment, but before its presentation to the court, the board of public improvements, which, under the charter, had succeeded to the powers of the board of street opening and improvements, adopted a resolution rescinding the resolution adopted by the latter board on July 6,1894, and providing that “ one-half of the entire cost and expense of such’ proceedings shall be assessed upon the property deemed to be benefited thereby, and one-half shall be borne and paid by the City .of New York.” It appears that the attorneys for the People’s Guaranty and Indemnity Company, by its attorneys, and as representing Mrs. Marks, were active and instrumental in persuading the board of public improvements to adopt this resolution, which at once relieved lier property from óne-half the burden which it was prospectively bound to bear at the time that the contract with the company was entered' into. It -also appears that the attorney for the company, acting in behalf of Mrs. Marks, appeared before the commissioners of estimate and assessment and successfully presented proof and arguments looking to a further reduction of the assessment on her lots. The result of all these efforts was that on March 8, 1902, the commissioners' of estimate and assessment filed in the bureau of street openings an abstract of their supplemental and amended estimate and assessment, and gave notice under the statute that objections might be made thereto on or before March 31,1902,. and that they would hear such objections on April 2, 1902. After hearing such objections and on July 8, 1902, the commissioners made a final report, which was presented to the Supreme Court for confirmation and was Confirmed on November 20,1902. By this final report each lof Mrs. Marks’ lots was assessed for $576.22, and it is for one-quafter of the difference between the amount thus' assessed and the original proposed assessment of -$1,557*60 per lot that the plaintiff has recovered judgment. We think that this judgment should not be disturbed. The evidence is clear that through the active efforts of the attorneys for the People’s Guaranty and Indemnity Company a large proposed assessment upon Mrs. Marks’ property ufas'most materially reduced, and there is nothing to justify the Assumption that such reduction would have been effected without! such efforts on her behalf. She thus obtained precisely what she; had contracted for, as we read the contract. The fact that Mrs. Marks died on March" 29, 1902, before the assessment was finally confirmed, does not affect the liability of the executors. Her contract was a personal one and the claim upon it, if valid, is now one against her executors and not against her heirs or devisees. | The work for which she contracted had been substantially completed before her death, for the reduction of the assessment had been secured, so far as the commissioners of estimate and assessment were concerned, and the preliminary abstract showing the results of their deliberation had been completed and filed. The very slight reduction of the assessment between that shown by the preliminary estimate and that contained in the final report is so insignificant as to justify .the assumption that it resulted from a mere correction of calculations in the distribution of the entire assessment. Thebe is no force in the suggestion that the contract, being one for personal services, was not assignable, because on; September 10,' 1902, when the merger is saidto have been effected between the People’s Guaranty and Indemnity Company and this plaintiff, the services contracted for had all been performed, and what passed to plaintiff was not a contract for services to be performed, but a claim for services which had been rendered. !

The judgment and order should be affirmed, with costs. ' ■

Patterson, Ingraham, McLaughlin and Houghton, JJ[._, concurred. - ;

Judgment and order affirmed, with costs. Order filed.  