Williams v. Bergin

Street Assessment — Description op Improvement in Work not Already Done — Jurisdiction.— An order “that granite curbs be laid ” on a specified street between two cross streets, “ where not already laid, and the roadway thereof be paved with basalt blocks, where not already so paved, ” is sufficient to give the board jurisdiction to order the improvement, the extent of which is capable of exact ascertainment, and does not depend on the arbitrament or discretion of the superintendent of streets.

Id.—Assessment Including Work Already Done—Remedy by Appeal. If the assessment includes any expense for paving or for curbs that were paid at the date of the order, it should be corrected on an appeal there, from.

Id. — Pleading—Statute op Limitations — Demurrer—Answer. — In pleading the statute of limitations by demurrer, it is sufficient in form ■ to specify the statute as one of the grounds of the demurrer; hut a demurrer on this ground can only he sustained when it affirmatively appears from the complaint that the plaintiff’s cause of action is barred; and the defendant cannot, in support of the demurrer, invoke other fasts which might he introduced in his defense, which are only proper in an answer.

Id- — Delay op Three Years in Making Assessment — Duration op Lien—Presumption—Discharge op Official Duty—Pleading. —The statute does not prescribe any particular time after the acceptance of the work within which the superintendent shall issue the assessment and warrant; and the mere lapse of more than three years after such acceptance, or of more than the period fixed as the duration of the lien, is not of itself a bar to their issuance; hut the superintendent is presumed to have regularly performed his official duty in making the assessment, and his act is prima fade valid, and any facts or reasons why the lapse of time was such as to deprive him of the right to make the assessment, should be presented as an affirmative defense, and not by way of demurrer to the complaint.

Id._Running op Statute—Unreasonable Delay op Plaintiff—Right op Action Depending upon Official Act—Presumption.—A party cannot by bis own negligence or for his own convenience, stop the run ning o£ the statute, and when he has it in his power at all times to do an act which fixes his right of action the statute will begin to run after the lapse of a reasonable time in which to do such act; hut this rule ceases to apply when the right of action is not under his control, but depends upon au official act to be performed by a public officer in the line of his dut)', and, in such case, there is no presumption that any delay in its performance was unreasonable.

Id.—Right of Action upon Assessment—Demand fob Assessment and Wabrant—Responsibility for Neglect—Pleading of Limitation— Defense.—There can be no right of action upon a street assessment until after the issuance and return of the warrant, and where there is nothing in the complaint from which it can be inferred that there was an unreasonable delay of the plaintiffs in malting a demand for the assessment and warrant, but the averments of the complaint are as consistent with holding that the delay was owing to the superintendent as that it was owing to the plaintiffs it does not appear from the complaint that the cause of action is barred by the statute of limitations; and if in fact the delay resulted from the neglect of the plaintiffsto make any demand for an unreasonable time, and for a time greater than the period in which the assessment would have been a lien upon the property, or from any conduct of the plaintiffs, which should deprive them of the right to enforce the assessment, the facts should be pleaded by way of defense in the answer.