By the Court.
Atwatee, J.This action was brought by the Plaintiff in Error, to obtain the same relief, as that claimed in Weller vs. The City of St. Paul, (ante page 95,) and upon the same grounds. An answer was filed and an application was made by both parties for judgment upon the pleadings. The application of the Defendant was granted, and the Plaintiff sued out a writ oí error.
The Plaintiff in his complaint alleges substantially the same errors in the assessment as those complained of in the case of Weller vs. the City of St. Paul. The answer denies the allegation that no estimate of the expense of the grading was made and filed with the Comptroller, as required by Sec. 6, of Chap. 7, Sess. Laws of 1854, p. 30, but admits that the expense of grading was not assessed upon the lots fronting on the street, and alleges that it was assessed upon the lots fronting on .the street graded, which were benefited. The Court held in the case of Weller vs. The City of St Paul, that such an assessment is unauthorized by law, and the error would vitiate the assessment. And as it also appears in this case, that a tax deed is about to be given of the lots belonging to the Plaintiff, which were sold under the assessment, the Plaintiff in Error is entitled to have the sale under the certificate mentioned in the complaint declared null and void, and the certificate delivered up to be cancelled.
Emmett, C. J., dissents.