
    The City of Cincinnati for the use of Jacob Wirth v. The Cincinnati and Spring Grove Avenue Company, et al.
    For tire purpose of connecting two public thoroughfares, a street improvement was ordered, which was to be paid for by assessment on the owners of the abutting property. After the work had been completed part of the way, it was suspended or abandoned, leaving a part of the proposed street wholly unopened—Held, That an assessment for the work already done was premature and unauthorized.
    Motion for leave to file a petition in error to the Superior Court of Cincinnati.
    
      C. Von Seggern and Wulsin ‡ Perkins, for plaintiff in error.
    
      Collins Herron and Forrest, Cramer Mayer, for defendants in error.
   By the Court.

The original action was brought to ■ recover, from the abutting property owners, an assessment made for the improvement of a street.

The ordinance providing for the improvement and for charging the cost on the abutting property, prescribed that the street should be improved from Hopple street to Spring Grove Avenue, a distance of over a thousand feet. About two hundred feet of the street ordered to be improved, lying next to Spring Grove Avenue, is private property; aud there has been no attempt to open and improve that' part of it, so that the street, as now improved, does not afford access to Spring Grove Avenue, nor accomplish the ends intended by the improvement as ordered. The work on the unimproved portion of the street has been suspended or abandoned.

The court below refused to enforce the assessment on the-ground that the work as done constituted a different improvement from that which had been ordered, and which-was required to be paid for.by assessment on the abutting; property.

In this action of the court we see no error. Under section 540 of the municipal code, no such improvement can be made, the cost of which is to be specially assessed, without the concurrence of two-thirds of all the members of the city council, unless two-thirds of the owners to be charged petition in writing therefor. In directing the execution of the work, a majority of the members of the-council is all that is required.

A wholly different improvement from that ordered may be effected as well by subtracting from as by adding to it; and we agree with the court below that the stopping the work, as is proposed in the present case, will result in an improvement which will fail to accomplish the substantial purposes intended by the improvement as ordered, and for the payment of the cost of which the abutting property was directed to be assessed.

We see no reason why the work may not yet be completed, and the cost assessed as originally intended; but in the present condition of the work, the assessment is premature and unauthorized. -

Leave refused.  