LOUIS V. BIBI vs. JOSEPH COURVILLE.

TILLY D. THORNER, trustee, vs. SIDNEY S. STONE.

357 Mass. 782

June 11, 1970

The defendant appeals from an order of the Appellate Division of the Northern District dismissing a report. The action was brought in the District Court of Newton to recover a portion of the real estate taxes under a written lease and to recover an attorney's fee in enforcing obligations under the lease. As the Appellate Division noted, "The [t]rial [j]udge apparently took the position that there was no ambiguous language in the lease" and concluded that the base figure should be the tax as abated and actually paid. The Appellate Division agreed with the judge's determination but concluded that "the language . . . required clarification and that such clarification was provided by consideration of the subsequent conduct of the parties." In either

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event, we are satisfied that the defendant's tax liability under the lease is based on the tax as abated. In view of this conclusion the plaintiff is entitled to an attorney's fee in enforcing obligations under the lease by virtue of the express provision therein.

Order dismissing report affirmed.