#### Gross Coal Company, Respondent, vs. City of Milwaukee, Appellant.

*December 8, 1911*

January *9, 1912.*

*Pleading: Sufficiency of complaint: Amendment: Appeal: Review: New trial: Municipal corporations: Streets: Paving: Changing established grade: Presumptions: Official acts.*

1. Even if tlie trial court erroneously overruled an objection to any evidence under the complaint, that fact does not impair the probative quality of the evidence admitted; and an appellate court should not, by disregarding such evidence,' deprive the trial court of its power to permit the complaint to- be amended.

*732. Upon an appeal from an order granting a new trial the court will not review an order overruling a demurrer *ore terms.*

3. Evidence that abutting property owners paved a street, with the consent of the city council and of the hoard of public works and under the supervision of said board and of city engineers, is evidence that the pavement was laid to the established grade, even though all of such acts were without authority of law.

4. The granting of a new trial rests largely in the discretion of the trial court.

Appeal from an order of tbe circuit court for Milwaukee county: WabeeN D. TabbaNt, Circuit Judge.

*Dismissed.*

Action to recover for an alleged injury to plaintiff’s property on First avenue in tbe city of *Milwaukee*by reason' of a change in tbe established grade and tbe erection of a viaduct on said avenue. Tbe appeal is from an order setting aside a verdict in favor of tbe defendant and granting a new trial.

For tbe appellant there was a brief by *Daniel W. Horn,*city attorney, and *Clifton Williams,*special assistant city attorney, and oral argument by *Mr. Williams.*

For the respondent there was a brief by *Lenichech, Robinson, Fairchild <& Boesel,*and oral argument by *F. J. Leni-chech*and *F. T. Boesel.*

Timlin, J.

A new trial in this case was granted on tbe ground that tbe verdict was against tbe weight of evidence. Tbe verdict was for tbe defendant and it appealed.

One point made by tbe defendant is that tbe complaint did not state a cause of action, and there was an objection at tbe trial to tbe reception of any evidence thereunder. This objection, it contends, was erroneously overruled, hence that all tbe evidence was wrongly received, and for this reason tbe verdict was not against tbe weight of evidence, but tbe circuit court abused its discretion in granting tbe new trial on that ground because there was not only no weight of evidence but no evidence. This position has a captivating semblance of *74logic and deserves scrutiny. But if it be granted that the circuit court erred in overruling this objection to the admission of evidence, still this ruling did not impair the probative quality of the evidence when admitted. Evidence does not lose its probative force because it is not backed by pleading. The pleading is in such case subject to amendment. To correct the alleged error of the circuit court by now wholly disregarding the evidence would deprive that court of the power of amendment. To this power the plaintiff has the right to appeal after it is ascertained by the circuit court or by this court that the ruling of the circuit court admitting the evidence was erroneous. An objection in this form is in the nature of a demurrer to the complaint, and upon appeal from an order granting a new trial this court will not review an order overruling a demurrer. *Flanagan v. C. & N. W. R. Co.*45 Wis. 98; *Jones v. Milwaukee E. R. & L. Co.*141 Wis. 421, 133 N. W. 636, and cases cited.

On the question of plaintiff’s right to recover as for a change of grade the evidence to show that the street was formerly constructed and paved to the established grade is not wholly lacking. It consists of a showing that after the ordinance of 1888 established the grade a granite block pavement was ordered by the city authorities and this order was rescinded. On November 19, 1888, the board of public works sent a communication to the common council to the effect that, upon the request of property owners (abutters), permission was granted them by the board to do the- work with cedar blocks. That the landowners did so and at the same time paved the crossings and gutters, and for the latter ought to be reimbursed by the city. The common council took action on this communication, apparently recognized this arrangement of the board of public works by allowing • these claims for reimbursement. The witness Steinman, who was an alderman and an occupying abutter in the street in question at that time, describes this cedar block paving and the *75action of tbe abutters under tbe supervision of tbe board of public works, and that there were engineers wbo, he has reason to believe, were members of tbe city engineer corps to give tbe grades and stakes, and that a city inspector was there to oversee tbe work while it was in progress. We think this was evidence that tbe paving was done under tbe supervision of tbe board of public works and therefore at tbe proper grade. *State ex rel. Willis v. Prince,*45 Wis. 610. In tbe nature of things it is pretty difficult for any person wbo has not tested tbe work with instruments to say positively that any paving work is up to tbe lawfully established grade. This fact must be proven by tbe best competent evidence available to tbe plaintiff. It is argued that tbe city authorities bad no lawful power to so authorize tbe property owners and tbe latter na lawful right to do tbe work. Tbe statute authorizing this method seems to have been repealed about six years before. , ,

It is further contended that tbe city engineers bad no lawful right to represent tbe city in this matter and that tbe city inspector bad nothing to do with tbe grades. Granting all this, it only goes to defeat any claim of estoppel against tbe city. It does not disable these acts as evidence tending to show that tbe pavement was laid to tbe established grade. These are acts from which, with tbe uncontróverted fact that the paving was done with tbe consent of tbe board of public works and tbe city council, tbe jury might infer that the paving was put down upon tbe lawful grade level. There is evidence to tbe contrary, consisting mostly of measurements made some years before and some years after tbe paving in question. But the effect of these measurements as evidence is weakened by other evidence showing that tbe ground in ' this vicinity was soft and marshy and tbe street surface liable to sink.

We cannot say that there was no evidence before tbe jury which might entitle tbe plaintiff to recover oh this ground. *76“The granting of a new trial rests largely in tire discretion of tlie trial court.” *Bailey v. McCormick,*132 Wis. 498, 112 N. W. 457, and cases. On the amount of damages the evidence is based upon opinion and quite evenly balanced, the witnesses for plaintiff - estimating a depreciation of about $100 per front foot and those for the defendant testifying that there were no damages, rather a benefit to plaintiff by the construction of the improvement. Because the question is not before us, we express' no opinion in regard to the sufficiency of the complaint. Finding no reversible error, the appeal from the order granting a new trial should be dismissed.

*By the Court.*— Appeal dismissed.