The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1894-01-25
CITY PROPERTY HOLDERS.
They May Defend Actions Upon
Street Assessments
WHERE THEY CAN PROVE FRAUD.
Held That i'm Such Cases They Are
Not Bound by Appeal to the
Supervisors.

An important decision affecting the
rights of prOperty-holders was rendered oy
Judga Levy yesterday in the suit OF Denis
Cookery ct al. vs. Verona Z. Baird anu
others.
This is a suit brought by the plaintlh 10
recover on foreclosure OF lien OF street as
sessment, and the defendant Is one oil
number against whom suits are pending
Inc complaint is in the usual form LOT the
foreclosure of liens, and concerns the as
sessment on property-holderS Tor tbe con-
structl0n of the Fell-street sewer IN october,
1891. The answer alleges that the Super
intendent of Streets entered into con-
tract with w. NJ. Conklin and j. L. Nc
Cormack for the construction OF the sewer a;
that the contract was assigned to the plain
Tits; that at the time and during the
progress of the work conspiracy was en-
tered into between the contractor and the
Superintendent of Streets for the purpose
OF defrauding the pTOperty-holder In the
construction of the sewer. IhlS fraud Is
plainly and boldly alleged In the answer.
and the plaintiffs moved 10 strike out this part
OF the answer, for the reason that The property
heldrr was not party 10 the contract, and
therefore could not be heard.
The question presented 10 the court was this:
Ii clilLeD OWNS property III iuo CITY anu
county OF san Francisco, ana ne Is the one
cuargea6le with any assessment that may De
levied for the Improvement OF the street upon
which his property fronts. and suit Is lnsti-
tuted against him. can he appear IN court OF
equity and defend such an action, when he can,
according to the allegations of his answer.
prove That there was conspiracy TO deiraud
him of tue amount for which lie was assessed
The plaintiffs contention was that the de-
PENDANTS remedy was 10y an appeal TO the
Board of Supervisors. which was final, but
IlNN a hot 90 mar In
fraud was committed as between the Superin-
tendcnt OF Streets ana one of The property
owners, the property owner not being party
10 the contract, the act OF 1872 allowed the
defendant 10 come in and plead a fraud that
had been committed 10 defense Of an action 10
recover on street assessment In 1888 the
Legislature so amended aud changed the law
IN reference 10 deienSes IN actions of this kind
as To make II the same as that of 1862, under
which decision was rendered denying de-
PENDANTS right TO legal remedy but Judge
Levy held yesterday that the strong arm OF
equity, which reached out TO correct that
wherein the law by reason of its universally Is
deficient, provided that where wrong had
been perpetrated, and that wrong was In the
knowledge OF the party within three years, the
Injured party had right TO appeal 10 the
chancellor TO remedy that wrong.
IN his opinion Judge Levy pTopOunds this
question: IF, forsooIh IL was not found out
that there was any conspiracy as between the
contractor and the superintendent of Streets 10
peTpelTaIe fraud GU The prOperIy-owner with
in The time allowed to appeal 10 the Board OF
Supervisors, and no appeal has been made, has
not The chancellor the right 10 come in, In
court OF equity, and remedy that wrong? II
not what would court of equity BE- called
upon 10 do? However, careful reading of the
act OF 1862 which Is similar TO The act OF 1885,
and OF tie decisions of the Supreme Court under
that ACT. Is 10 the effect that II a property
owner feels aggrleved by the action of tie
SUPERINTENDENT of Streets in extending the
time for the completion OF a contract. his only
remedy is by appeal TO the Supervisors. And
so IN cases where a contract had not been
properly carried out.
but this question is entirely new. 1t alleges
fraud fiom It's Incipency, aud If that fraud
which originated in the conspiracy, was carried
out as between The Superintendent OF Streets
and the contractor. IL was void from the COM
mencement, and therefore court OF equity has
The right 10 interfere.
'FoT the reasons above stated 1t Is therefore
ordered that the motion TO strike out portions
OF The answer In reference to this defense be
denied. WALTER IL. LEVY, Judge"