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5 Ohio St. 520

Ernst v. Kunkle

Ohio Supreme Court

Decided December 15, 1856

Ohio Supreme Court · decided 1856-12-15

<p>The exercise of the power of assessment by the city of Cincinnati upon real estate, by the front foot, to pay for improving an adjoining street, is not a violation of the constitution of 1851.</p> <p>If damages are sustained by the owner or occupant of land, by reason of the grading of a street, the city is liable to the party injured, and the statute provides a remedy which may be pursued in such case ; but until a claim for such damages is filed with the clerk of the city, and sixty days thereafter shall have elapsed, without any steps being taken by the oity to assess the damages, an action will not lie against the city or its agents to recover for such injury.</p> <p>A contract, made by the city with K. and It., to grade and macadamize one of its streets, may be legally assigned to other parties, although the assessment for such grading was made by the city to pay K. and R.; and a suit may, after the completion of the work, be sustained by such assignee to recover the assessment.</p> <p>A counter claim cannot be allowed to one of several defendants, against the plaintiff, when it appears that another of the same defendants is primarily liable for the claim demanded.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1856-12-15

How this case has been cited

Cited by 10 later decisions (2 by the Supreme Court) — most recently May 1904

6 state decisions

30185618601870188018901900decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Bowen, J.,

¶1delivered the opinion of the court:

¶2The exercise of the power of assessment by the city of Cincin*523nati, upon real estate, by the front foot, to pay for improving an adjoining street, is not a violation of the constitution of 1851.

¶3If damages are sustained by the owner or occupant of land, by reason of the grading of a street, the city is liable to the party injured, and the statute provides a remedy which may be pursued in such case ; but until a claim for such, damages is filed with the clerk of the city, and sixty days thereafter shall have elapsed, without any steps being taken by the city to assess the damages, an action will not lie against the city or its agents to recover for such injury. It does not appear in this case that the claim of Ernst for damages had been filed with the city clerk.

¶4It was legally competent for McKeon & Reynolds to assign their contract with the city to Kunkle and Saffin, although the assessment to pay for the grading was made by the city to pay the former; and the assignees could, after the completion of the work, sustain a suit to recover the assessment.

¶5The counter claim of Ernst for damages, for injuries to his property on account of the grading, cannot be allowed as against Kunkle & Saffin, as it appears that if the claim is a valid one, the city is primarily liable.

¶6 Judgment affirmed. *

Bartley, C. J., dissented.

¶7 This case was decided before the case of Hill v. Higdon, ante, page 243, was reported.
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