Lambert

Action to foreclose a street assessment upon certain property in the town of Berkeley. Judgment-was rendered in favor of the defendant, and the plaintiff has appealed.

The contract for the work upon which the assessment was made provided that a portion of Alcatraz Avenue should be macadamized and guttered to the official line and grade. After the assessment was made the defendant appealed therefrom to the town council, and also from the act of the superintendent of streets in approving the work, and determining that the plaintiff had macadamized and guttered the street to the official grade, and had fully performed his contract. This appeal was afterwards overruled and disallowed by the council. Upon the trial herein the court found that the official grade for this portion of Alcatraz Avenue was established by the town council, June 23, 1892, by an ordinance passed on that day; that an attempt was made to change this grade by ordinance No. 595, which was passed February 11, 1895, but that this ordinance was not legally adopted, and, therefore, that the grade fixed by ordinance No. 405 had not been changed. The court also found that the work done by the plaintiff was not done to…