
    LAKEWOOD (city) v S. H. KLEINMAN REALTY CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10148.
    Decided March 17, 1930
    R. G. Curren, Director of Law, Lakewood for City.
    • Holding, Duncan & Leekie, Cleveland, for Rlty Co.
    Judges WILLIAMS & RICHARDS (6th Dist) sitting.
   BY THE COURT

We hold that the court erred in two respects: First, in permitting the plaintiff below to recover for the excess of assessments collected more than one year before the action was commenced, and, second, in permitting the plaintiff below to recover for excess of assessments which were paid in fact by purchasers of lots, the title to which was not in plaintiff below at the time of the commencement of the action. We hold that where, at the time of the commencement of the action, plaintiff below was then the owner of lots on which assessments were paid, it could, as to such assessments, recover the excess even though the money paid for such assessments was advanced by a purchaser of the lot, but as to lots which plaintiff below did not own at the time it began the action, it could only recover excess of assessments paid where the money was not paid by it from funds advanced by the purchaser but from funds of the plaintiff itself.

There being two assessments yet unpaid, the contest among the parties involved can no doubt be worked out equitably.

We find no other error apparent upon the face of the record, but for the reasons given the judgment of the court below will be reversed and the cause remanded for further proceedings according to law.  