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City of Chicago v. Westphalen

MAY 9, 1968.

CITY OF CHICAGO, A MUNICIPAL CORPORATION, PLAINTIFF-APPELLEE,

v.

ROBERT WESTPHALEN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. FRANK B. MACHALA, Judge, presiding. Judgment affirmed in part, reversed in part, and cause remanded with directions.

MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.

The defendant was charged with eight building code violations relating to an apartment building at 3940 South Wentworth Avenue, Chicago, Illinois. He pleaded not guilty, waived a jury and proceeded to trial. During the course of the trial the plaintiff made an oral motion to non-suit Count 1 of the complaint, which motion was granted over objection. The defendant was found guilty on the remaining Counts 2 through 8, and fined $250 and costs. He appeals from that judgment.

Three charges of error made by the defendant merit consideration: (1) that the complaint fails to state a cause of action; (2) that the court erred in nonsuiting Count 1 after the trial was in progress; and (3) that the defendant was not proven guilty on Counts 2 through 8 by a clear preponderance of the evidence.

The complaint alleges building violations as follows:

COUNT CODE SECTION FAILED TO (OR DID)

1 43-1 Deconvert building to its original plan or 78-8.2 construction or comply with the code 78-10.1 & 2 provisions and requirements for converted or altered structures.

2 67-4 Provide additional means of egress for the 78-15.1 & 4 following location: 2nd flr. rear apt.

3 52-2 Provide walls or partitions separating each dwelling from all other parts of building with materials having not less than one (1) hour fire resistance — 1st and 2nd flr. between apts.

4 78-17.5 Repair or replace defective or missing members 78-3a of porch system — 2nd flr. catwalk.

5 78-17.2e Place the surfaces of walls and ceilings in a clean, smooth and tight condition — Throughout.

6 78-17.2a & b Repair or rebuild defective floors — Throughout.

7 78-17.3b Repair or replace defective window sash — Throughout.

8 78-17.3 Repair or replace defective window frame — 78-3a Throughout.

With respect to the first contention, defendant argues that the complaint failed to state a cause of action on any of the counts therein, and contends that a substantial defect of this nature may be raised for the first time on appeal. The plaintiff accepts this general statement of the law, but points out that nowhere does defendant show why the complaint does not state a cause of action. We gather from the explanation given on oral argument that defendant objects to the ...


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