By the COURT. The court found that before the board of supervisors gave notice of their intention to order that Broadway, from the west line of Buchanan street to the west line of Webster street, be graded, “two blocks upon each side of the above-mentioned portion of said Broadway street” had been graded. That being so, the board of supervisors were authorized, upon the recommendation of the superintendent of streets, etc., to give notice of their intention to order said grading without any petition therefor: Stats. 1872, c. 562, sec. 4, p. 806.

But the court also found that the work was not ordered upon the recommendation of said superintendent. This finding is attacked on the ground that there is no evidence to support it. It was unnecessary for the plaintiff to allege what proceedings had been had prior to the. issuance of the assessment, diagram^ and certificate (Id., sec. 13); and the defendant did not allege in his answer that the work was not ordered on the recommendation of said superintendent. In the absence of any such averment in the answer, the fact was not in issue.

Neither party introduced any evidence which tended to prove or disprove that the superintendent had recommended that the work should be ordered. On this ground we think the motion for a new trial ought to have been granted. It does not appear that any objection was made to the dismissal of the action as to all the defendants except the respondent. In Clark v. Porter, 53 Cal. 409, there was an objection to the dismissal of the action as to any of the defendants. It is found that none of the defendants as to whom the action was dismissed had any interest in the land assessed.

That being so, the dismissal could not prejudice those as to whom the action was not dismissed. Judgment and order reversed.