The herald., 1898-10-30
MAIN STREET PAVING
LOT OWNERS MUST PAY ASSESS
MENTs LEVIED
DECISION BY JUDGE VAN DYKE
Test Case Results in Judgment for
Foreclosure Of Lien Filed
by Assignee

Judge Van Dyke yesterday ordered judg
ment for Albert Hadley against s. "A. Mat
tison ct al, in an action to foreclose lien
for street assessment levied for the i'm
provement of Main street, between Ninth
and Thirty-seventh streets. In a written
opinion the court says that the documents
filed in evidence afford prima facie proof oi
the regularity and correctness OF the assess
ment and the entire proceedings and Of the
right Of the plaintiff to recover.
The defense was based on the allegations
that the findings of the council as to the
cost of the work was defective; that the
warrant was void on its face because not
made to John I. Long, the contractor; that
the work was not completed in the time al
lowed by law, and that the complaint stated
no cause of action, inasmuch as the speciti-
cations mentioned in the ordinance of inten
tiOn were not set forth
Judge Van Dyke holds that the first OBJ
lection is based on the language OF the So
called bond act, but that defendants
elected to prevent the issuance of bonds
against their property under the provisions
of that act, which does not require an eX-
press, formal finding, and the finding con-
tained in the ordinance of intention as set
forth in the complaint is substantially the
same as that required by the bond act
The second objection, that the warrant
was void because made to his assignee, in
stead of to the contractor himself, having
been decided by Judge Shaw in another
case adversely to contention OF defendants,
is passed over, Judge Van Dyke seeing no
reason to differ from his conclusions.
within thd time allowed by law, the court
says the work was accepted by the superin-
tendent of streets Dec 4, 1896, thirty-eight
days before the expiration of the time men
toned in the contract for its completion.
The injunction preventing work from Aug.
30, 1896, is referred to, and the subsequent
appeal Of property owners to the council,
resulting in an extension of sixty days from
Jan. 25, 1897, and later until July |, 1897 car
ried the date beyond the day when the work
required by the council on appeal was per-
formed to it's satisfaction. Defense CON
tended the extension of time on Jan. 25th
was without authority of law, inasmuch as
the original contract time expired Jan. llth,
while plaintiff contended that the suspen-
sion of work by the injunction extended the
time for it's completion for the same period
that work was stopped by the injunction.
The court holds that the acceptance of the
work by the superintendent of streets was
made within the contract limits, and that
although the right of appeal exists, it could
not fairly be presumed that when the work
had been performed to the satisfaction of
the superintendent of streets, that the work
was not such as required by the contract,
or that it was not finished in time, or that
if an appeal should be taken it would re-
quire anything further to be done by the
contractor under his contract. The right of
the council to prescribe and extend the time
limit, whenever an appeal is taken, is sus-
tanned by the decision which carried with
it the opinion that the specific work was
Ia, H..
That the complaint did not state facts suf-
ficient to constitute cause of action is he ID
not to be we'll taken. Accordingly findings
and judgment are ordered for plaintiff.