#### Pittelkow, Respondent, vs. Herman, imp., Appellant.

*December 1, 1898*

January *12, 1897.*

*Special assessments: Restraining collection*pendente lite: *Evidence.*

An injunction, *pendente lite,*in an action to set aside a tax certificate based on a special assessment for street improvements, for want of view of the premises by the board of public works as re-*667quirecl by the city charter, is *held*to have been improvid'ently granted where the complaint on which the application was based set up such failure on information and belief only, and it was expressly denied by affidavits of the members of the board showing full compliance with the law.

Appeal from an order of the superior court of Milwaukee county: R. N. Adstiet, Judge.

*Reversed.*

Eor the appellant there were briefs by *Hoyt, Ogden dc Ohoell,*and oral argument by *L. M. Ogden.*

*V. W. /Seely,*for the respondent.

Cassoday, 0. J.

The complaint in this case is substantially the same as in *Pittelkow v. Milwaukee, ante,*p. 651. In this case the want of view of the premises by the board of public .works, which is alleged in the complaint upon information and belief only, is expressly denied; and upon the motion for a temporary injunction it was, in effect,'made to .appear affirmatively that the several members of the board in a body proceeded to Hadley street, and viewed the street and premises fronting and abutting thereon from First street to Island avenue, for the purpose of considering the amount to be made chargeable against the several lots or pieces of land fronting on said street, and the benefits which, in their opinion, would actually accrue to the owner of the same by reason of the improvement of said street by grading and graveling the roadway, grading, curbing with stone, and planking the sidewalk, and paving the gutters, in pursuance of the resolution adopted by the common council June 11, 1894; that thereafter the board made its assessment of benefits and damages which the lots and parcels of land fronting on Hadley street between First street and Island avenue would derive or suffer from said proposed improvement, a copy of which said assessment is set forth in the complaint in this action; that said assessment was made upon an actual view of said premises, including the lots belonging to the *668plaintiff described in the complaint. Notwithstanding such showing, the city was, by order of the court, enjoined and restrained from selling the lots mentioned in the complaint for the tax therein mentioned, and from issuing any certificates of tax sale thereon; and the defendant *Herman*was thereby enjoined and restrained from selling or disposing of the certificates of the board of public worts by him owned and held, as alleged in the complaint. From that order the defendant *Herman*brings this appeal.

As indicated in the opinion filed in the other case, the only defect in the proceedings alleged in the complaint was the want of such view by the board of public works. In this case such allegation is not only denied, but clearly disproved.

*By the*Court.— For this reason, and the reasons given in the opinion in the other case, that portion of the order of the superior court of Milwaukee county appealed from by the defendant *Herman*is reversed, and the cause is remanded for further proceedings according to law.