
    INJUNCTION.
    [Hamilton (1st) Circuit Court,
    May 19, 1906.]
    Jelke, Swing and Giffen, JJ.
    Charles C. Breuer et al. v. John H. Gibson et al.
    Abutter Petitioning for Improvement may not Enjoin Collection op Assessments to Pay por Same, when Made as Requested, on Ground op Improper Construction.
    One who petitions a city for street improvement abutting on his property, te be made in a certain manner, may not enjoin the collection of assessments to pay for the improvement on the ground that it was improperly and negligently constructed, if the improvement is made in the manner asked for.
    [Syllabus approved by the court.]
    INJUNCTION.
    Horsiman & Horstman, for plaintiffs.
    C. J. Hunt, city solicitor, for defendants.
   PER CURIAM.

This action [Charles C. Breuer and H. W. Morganthaler v. John H. Gibson et al.] was commenced to enjoin the collection of certain assessments levied upon the plaintiff’s lots for a street improvement, on the ground that the street was improperly and negligently constructed. The amended answer contains the averment that the plaintiff petitioned the city through its proper boards tc make said improvement in the manner in which .it was afterwards made, and wherein they agreed to pay for the whole cost of such improvement except 2 per cent of the entire cost of the improvement and the costs of the intersections. This averment is nowhere controverted by reply, and hence the court did not err in refusing to hear testimony tending to prove that the street was negligently and improperly constructed.

A rehearing will therefore be' denied.  