Dealtry Et Al. v. Selectmen Town Watertown

SANDERSON, J. The plaintiffs are fifteen taxable inhabitants of the town of Watertown. The defendants are the selectmen, superintendent of streets, engineer, auditor and treasurer of the town, and the John P. Condon Corporation, the contractor. The General Crushed Stone Company, a corporation, was allowed to intervene as a party defendant. The three demurrers filed to the bill and amended bill were sustained on the first and fourth grounds and the questions raised by the demurrers reported to the full court. The demurrers are identical in the statement of the first ground, namely, that the plaintiffs have not stated such a case as entitles them to any relief in equity against the defendants. Two of the demurrers are substantially in the same form in the statement of the fourth ground, namely, That it appears by the plaintiffs petition that in doing the acts complained of, the defendants Edward P. Furber, Eric L. Johnson, Clifford S. Lovell, Pierce P. Condon, Otis W. Allen, Willie W. Norcross, Jr., and Harry W. Brigham, were acting in the performance of the public duty imposed by law. The town officials in stating their fourth ground of demurrer have used the same language but added at the end the words and within their discretionary powers.