Milton v. Stell

• Decision Date: 26 February 1906
• Parties: MILTON v. STELL.
• Court: New Jersey Supreme Court

62 A. 1133

73 N.J.L. 261

MILTON

v. STELL.

Supreme Court of New Jersey.

Feb. 26, 1906.

(Syllabus by the Court.)

Appeal from District Court of Jersey City.

Action by John Milton against Charles Stell. Judgment for plaintiff, and defendant appeals. Reversed.

Argued November term, 1905, before GARRISON, SWAYZE, and DIXON, JJ.

John Milton, pro se. J. Merritt Lane, for defendant

DIXON, J. On April 17, 1903, the defendant and several other persons entered into a written agreement with Messrs. Black & Drayton, attorneys of this court, in the following terms: "We, the undersigned, owners of the property alleged to be liable for an assessment for the opening and improvement of Baldwin avenue, Jersey City, N. J., hereby authorize Messrs. Black & Drayton, counsel, to attack said assessment and to set the same aside, and we agree to pay said counsel 15 per cent. of the amount of any assessment on our respective properties which may be set aside by the courts, or 15 per cent. of any reduction thereof, if not entirely set aside; and, in event of the courts not setting aside or reducing the assessment, the said counsel, Black & Drayton, shall receive no compensation whatsoever." Thereupon the attorneys procured a certiorari to review the assessment mentioned in the agreement, and on June 16, 1904, a judgment was entered upon that writ as follows: "It is ordered that the assessments for the opening, extension, and improvement of Baldwin avenue in Jersey City, brought up by these writs, should be set aside, and the commissioners directed to make a new assessment according to law, with costs to the prosecutors in said writs."

The question now before us is whether by force of these proceedings Messrs. Black & Drayton, who have assigned their claim to the plaintiff, became entitled to the 15 per cent. provided for in the agreement. We think they did not. The word "assessment" is equivocal. It may mean either the act of apportioning the burden to be borne by the persons or property chargeable or the particular burden assigned to each. It is evident that in the agreement the word was used in the latter sense. This appears in the expressions "the amount of any assessment on our respective properties" and "any reduction thereof." The act of apportioning the burden was not an amount and was not capable of reduction. These terms could apply only to each owner's burden. But in the judgment above recited the word "assessment" was used in the sense first mentioned. The...