Since the filing of the opinion in this cause the respondent has requested the court to modify the judgment appealed from by striking out of it the amount thereof which was given for the assessment of that portion of *Page 242 the work done on the intersection of Mission street and China avenue, considered in the fifth subdivision of the opinion. This is in effect a waiver and relinquishment by the respondent of the amount claimed in his complaint for that portion of the assessment, and under the authority of Fox v. Hale etc. Co.,122 Cal. 219, his motion is granted.
The judgment heretofore rendered herein is, therefore, set aside, and instead thereof the following judgment is given:
The superior court is directed to modify the judgment appealed from by striking out the amount thereof which was given upon the assessment for that portion of the work done on the intersection of Mission street and China avenue, and as so modified the judgment and order denying a new trial will stand affirmed.