Conniff v. Kahn

Department No. 2, Sharpstein, J.: This is an appeal from a judgment in an action upon a street assessment. The complaint was demurred to on the grounds, 1st. That it did not state facts sufficient to constitute a cause of action ; and, 2nd. That it was ambiguous, unintelligible, and uncertain. The order overruling the demurrer is as follows: “On motion of plaintiff’s attorneys, defendant’s attorney consenting thereto, ordered, that the demurrer to the complaint herein be and the same is hereby overruled, with leave to the defendant to answer in ten days.” In his points and authorities, the counsel for appellant insists that the demurrer should have been sustained. If he had not consented to its being overruled, it'would be the duty of this Court to consider that point. As it is, we cannot regard it as before us on this appeal. That the work was more than half done under a private contract, to which defendant was not a party, before any steps were taken to let a public contract, and that the plaintiff went on and completed the work, and after its completion the party who had taken the public contract assigned it to plaintiff, does not constitute fraud per se; and as the Court has found that there was no fraud, we cannot reverse the judgment on that ground. Judgment affirmed. I concur. Myrick, J. I do not think the complaint was demurrable, and concur in the judgment. Thornton, P. J.