Libbey

The action is upon a street assessment. The court below sustained a demurrer to the complaint, and thereupon rendered judgment in favor of defendants. The plaintiff appeals.

We think the demurrer was properly sustained. It appears from the complaint that the contract which is *317 the basis of the assessment sought to be enforced was not entered into between the assignor of plaintiff and the superintendent of streets within fifteen days after the first posting of the notice of its award to plaintiff’s assignor, the plaintiff alleging that posting of such notice was first made on September 22, 1890, and the contract executed on the eighth day of October following. There is no averment in the complaint that this delay in executing the contract was not caused by the neglect, failure, or refusal of plaintiff’s assignor, and we held in the case of Perine v. Forbush, ante, p. 305, that such an allegation is necessary, in order to state a cause of action in this class of cases, when it also appears from the complaint that the contract was not entered into within fifteen days after notice of its award was first posted, and the judgment here must be affirmed, upon the authority of that…