Fitzhugh

This is an appeal by the defendant Ash-worth and the intervenor Tilton, from a judgment of the superior court in mandamus, whereby it was decreed that the defendant Ashworth, as superintendent of streets, etc., of the city, and county of San Francisco, do pay to the plaintiff the sum of $5,713, with interest. Appellants also appeal from an order denying a new trial.

The real contest is between the intervenor, Tilton, who was city and county surveyor and engineer from the first Monday in January, 1891, to the first Monday in January, 1893, and the respondent, who was such surveyor and engineer from the first Monday in January, 1893, to the first Monday in January, 1895. The law which provides for work upon streets, lanes, etc., and for the construction of sewers within municipalities, requires that a contractor for such work “must advance to the superintendent of streets, for payment by him,” certain enumerated costs, and “other incidental expenses” (Stats. 1889, p. 162); and it is further provided that “the term ‘incidental expenses,’ as used in the act, shall include the compensation of the city engineer for work done by him.” On December 13, 1893, while respondent was city…