Order affirmed.
Taylor Crum, (Aubrey Lawrence, of counsel), for appellant.
If a board is the agent of the city, the city is liable for its acts and omissions. 33 N. D. p. 69, et seq.
The same doctrine is held in many other cases of which the following are a few. City of Denver v. Spencer, 82 Pac. 590; Burridge v. City of Detroit, 76 N. W. 84; Mahon v. New York, 31 N. Y. Supp. 657; Denver v. Peterson, 36 Pac. 1111; Lowe v. Salt Lake City, 44 Pac. 1050; Weber v. Harrisburg, 64 Atl. 905; Barthold v. Philadelphia, 26 Atl. 304; Silverman v. New York, 114 N. Y. Supp. 59; Powers v. City of Philadelphia, 18 Pa. Super. Co. 621; Briegel v. Philadelphia, 135 Pa. 451, 19 Atl. 1038; Barnes v. District of Columbia, 91 U. S. 540, L. ed. 23, 440; District of Columbia v. Woodbury, 136 U. S. 450, L. ed. 34; 472; Bailey v. the Mayor 3 Hill (N. Y.) 531, Am. Dec. 38, 669; Capp v. St. Louis, 46 L. R. A. (N. S.) 731, 733.
The city of Fargo, by and through all its officers and agents, suffered and permitted the nuisance in question to remain, unsuperintended, on that crowded public play ground for weeks and weeks. Chicago v. Robbins, (U. S.) L. ed. 17, 289; Robbins v. Chicago, (U. S.) L. ed. 18, 427; Gilluly v. City of Madison, 24 N. W. 137; Parker v. Mayor, 99 Am. Dec. 486; Hughes v. City of Fon du Lac, 41 N. W. 407; Schroe- der v. City of Barabo, 67 N. W. 27; Watson v. Melford, 45 Atl. 167; Ferris v. Board of Ed. 81 N. W. 98; Town of Suffock v. Parker, 79 Va. 660, 52 Am. Rep. 640; Roman v. City Leavenworth, 133 Pac. 551; See instruction No. 4, 1st col. p. 553; Kansas City v. Siese, 80 Pac. 626.
W. H. Shure, (B. F. Spalding, of counsel), for respondent.
A demurrer does not admit conclusions of law, neither does it admit any construction pleaded by the pleader of instruments pleaded or facts imposed by law. 21 R. C. L. 508; A. L. R. 1915E, 926.
It is not sufficient to aver that it was the defendant's duty to perform the act alleged to have been neglected. The facts and circumstances from which the law implies such duty must be alleged. Ward v. Danzeizen, III Ill. App. 163.
An averment that certain conduct is the duty of defendant is of no avail where facts are not stated from which the law will create the duty. Illinois Steel Co. v. McNulty, 105 Ill. App. 594.
