111 Ky. 618 | Ky. Ct. App. | 1901
Opinion of the court by
Reversing.
This suit was brought to enforce a lien claimed' to exist upon the contiguous property for the cost of improving Floyd street, in Louisville, from Magnolia to Burnett avenue. Under the rulings of this court in Zabel v. Orphans’ Home, 92 Ky., 89 (13 R., 385), 17 S. W., 212, 13 L. R. A., 668, and Nevin v. Gaertner (20 R., 1022), 48 S. W., 153, it would seem that the petition was defective. No demurrer was interposed to the petition, but an answer and counterclaim were filed, contesting appellees’ right to recover upon the following grounds: First, because a portion of that part of Floyd street improved under the ordinance was not a. public or
This brings us to a consideration of the question whether; a set-off or counterclaim can be pleaded against a suit upon an assessment for local improvement. In Purdy v. Drake, (17 R., 819), 32 S. W., 939, the question was presented, but not decided, as the set-off there attempted to be pleaded was not sustained by the proof. In Dill. Mun. Corp., section 810, it is said: “As to agreements between the corporation .and a contractor to do the work the abuttors or property owners on whom the expense falls are not parties, but are brought into direct relation with the proceeding for the local improvement for the first time when the assessment is made. An assessment is a tax levied