Appeal from the Comity Court of San Francisco.

The Act of 1856, consolidating the City and County of San Francisco, in an article upon streets, provides the mode in which contracts for their grading shall be let by the Board of Supervisors, and for the assessment of the expense of the work upon the owners of the adjacent property. Section fifty-nine, as amended in 1859, is as follows:

“ An. action may he instituted and maintained, before any Court of competent jurisdiction, by the contractor or his assigns for work done and materials furnished upon street crossings under the provisions of this article against the several owners, assessed or liable therefor, for the recovery of the amount of their respective assessments or for repairs, as provided in section fifty-six of this act, which shall be deemed a remedy concurrent with the proceedings for the enforcement of such assessment and charges hereinbefore provided; and the entries kept by the Superintendent of Public Streets and Highways in the record book of assessments and charges, or a copy therefrom certified by the said Superintendent to be a true copy thereof, shall be prima facie evidence in said Court of the regularity of all the proceedings prescribed in this article.”

May 18th, 1861, an act was passed amending the act above referred to, the eighteenth section of which is as follows:

“ Sections fifiy-one, fifty-five, and fifty-nine of the act to which this is an amendment, commonly called the Consolidation Act,’ are hereby repealed. This act shaE take effect and be in force from and after the first day of June next.”

In March, 1861, the Board of Supervisors, in the form and mode prescribed by the act, awarded to plaintiff a contract for grading a street adjacent to a certain lot owned then by defendant, and an assessment therefor was levied upon the property owners, including defendant, against whom the assessment was one hundred and twenty-eight dollars and twenty-one cents.

Plaintiff completed the work about the first of May, 1861, and on the twenty-fourth of that month received from the Superintendent a certificate authorizing him to coEect from the several property owners the amounts assessed against them; and in August, 1861, having previously' demanded of defendant the amount of his assessment, which was refused, commenced this action in a Justice’s Court to recover the same.

The complaint sets forth in detaE the performance by the city officers and by plaintiff of the various requirements of the act preliminary and subsequent to the letting of the contract, the performance of the "work by him, the certificate of the Superintendent, and the demand upon defendant and his refusal to pay. In stating the dates of the several acts, the form of the averment is, that “ on or about ” a certain day the act was done, and after setting forth the contract, it is averred that the plaintiff “ duly performed” all the conditions therein on his part.

Defendant demurred to the complaint, and the demurrer being overruled, plead a general denial. On the trial, plaintiff had judgment, and defendant appealed to the County Court, where the case was tried anew with the same result.

In the County Court, defendant moved to dismiss the action, because of the insufficiency of the complaint, and objected to all the evidence of plaintiff when offered, and at the close of the trial moved to strike it all out, on the ground that “ there was no evidence to prove any tax assessment or charge against the defendant.”

The record book of the Superintendent, containing the entry of the assessment, and also a diagram of the street and lots adjacent was offered by plaintiff, and objected to by defendant, on the ground “ that no predicate for its introduction had been laid.”

All these objections and motions of defendant were overruled. Defendant moved for a new trial, which was denied; and from this order and also from the judgment the present appeal is taken by him.