The respondent moved for a rehearing, and the following opinion was filed March 20, 1900:
Baedeen, J.The principal ground relied upon in the motion for a rehearing is that plaintiff has already paid the benefits assessed against his property pending this litigation, and that if a new assessment is made he will have to pay twice. There is nothing in the record, showing that any such payment has been made. If such should prove to be the fact, when a new assessment is made the trial court would necessarily take it into consideration and adjust the rights of plaintiff accordingly. It is purely a matter of administration in. the court below, and can in no way be appealed to, to defeat the plain mandate of the statute which requires a reassessment. This action is virtually one to set aside a void assessment. The city had an absolute right to proceed if it had done so according to law. It being shown that it did not do so, the statute leaves but one course open to the court and that is to order a reassessment as the charter requires, and that is the only relief that can or should be granted in this action. When such reassessment is made, if it is made to appear to the court that plaintiff has made payment to the city of any sum to apply on the former assess*209ment, it will be its plain duty to take that into consideration and not require a double payment.
By the Court. — Eehearing denied with $25 costs.