
    No. 3867.
    James J. O’Hara v. Henry Blood.
    Where the defendant, “being sued for the payment of a certain sum in consequence of the construction of banquettes in front of his property in Locust street, averred that the city of New Orleans had not complied with the formalities set forth in the city charter in this— that one-fourth of the owners of real property fronting on said unbanquetted street did not petition for the banquetting alleged to have been done in that locality;
    Held — That a petition signed by a number of persons representing themselves as property holders on Locust street, asking for banquettes to be constructed in that street, being found in the record, it must be supposed, in the absence of rebutting evidence, on the principle of omnia presumuntur rite esse aeta that the persons petitioning constitute one-fourth of the property owners on that street.
    APPEAL from the Seventh District Court, parish of Orleans.
    
      Oollens, J. Hornor <& Benedict, for plaintiff' and appellee.
    J. A. Bonier, for defendant and appellant.
   Taliaferro, J.

The petition alleges that the defendant is indebted to him in the sum of seven hundred and forty-two dollars and thirty-six cents, with eight per cent, interest thereon from the nineteenth November, 1870, for having constructed banquettes in front of the defendant’s property on Locust street, in conformity with a contract entered into between the city and Patrick Harnan, who transferred all his right and interest in said contract to petitioner.

He prays judgment for the above sum, and interest with special privilege on defendant’s property on the Northwest side of Locust street, between Philip and Jaekson streets.

The answer is a general denial. The defendant avers that the city of New Orleans has not complied -with the formalities and requisites set forth in the city charter in this, that one-fourth of the owners of real property fronting on the unbanquetted street referred to in the petition, did not petition for the banquetting alleged to have been done at that locality; that the petition was not published dui’ÍDg the requisite time, and that the City Council never passed any resolution authorizing the said banquetting.

There was judgment in favor of the plaintiff in the court below as prayed for in the petition, and the defendant has appealed.

A review of the record satisfies us that the plaintiff has made out his case. We find a petition signed by a number of persons representing themselves as property holders on Locust street, asking for banquettes to be constructed on that street. On the principle that omnia jpresumimtur rite esse acta, we must suppose that the persons petitioning constitute one-fourth of the property owners on that street. The defendant has offered no evidence to rebut the presumption. A resolution of the City Council is shown accepting the bid of Harnan; and also we find the contract entered into between him and the city for the doing of the work, and the proper evidence showing that the work was performed according to the contract by the plaintiff, to whom the contract was assigned by Harnan.

The decree of the lower court we think correct.

Judgment affirmed.

Rehearing refused.  