City of Pittsburgh v. MacConnell , 130 Pa. 463 ( 1889 )

Per Curiam:

This affidavit of defence resembles the one in Erie City v. Butler, 120 Pa. 374, being “rich in adjectives, but meager in facts.”

The claim for grading, paving, and curbing was not'filed by a contractor, using the name of the city. On the contrary, the contract was made directly by the city. The city accepted the work done by the contractor, and then filed this claim therefor against defendant, as an abutting property owner, for her proportion of the expense. She sets forth in her affidavit of defence, (a) that the work and materials were not offered or given to the lowest responsible bidder; (F) that the contract was fraudulently let; and (e) that the work was insufficiently and badly done. As she was a stranger to the contract, she would have no standing to defend upon the grounds named, unless she shows special injury to herself by reason thereof, and that special injury must relate to so much of the work as was charged against her property. The city is not seeking to hold her for any portion of the work done elsewhere. Upon this point her affidavit is not only lame and evasive, but it is silent. She does not aver any defect in tbe work opposite her property. There is a general averment that the pavement was poor, and the material furnished for the foundation insufficient. We have here a mere opinion, but no facts. There is no statement of the depth of the foundation, or of what it was composed; there is no reference to the contract and specifications to enable the court to judge whether the contract has been complied with.

It would have been better, had the defendant known that the contract was fraudulently let, and the work badly done, to have moved in this matter at an earlier day. A property owner who has knowledge that a street contract was fraudulently obtained from the city officials, and sees the work being badly done under it, and neglects to inform the city, or to take any steps to stop the work, has not a very strong equity to be relieved from his or her share of the cost. It is not safe to lie by under such circumstances until the owner’s property has received all the benefit from the improvement, and then attempt to escape all share of the burden. In such case, where the city has in good faith accepted the work from the contractor, the owner is too late with her complaint. Even where the contractor receives the assessment bills in payment of his work, as in the city of Philadelphia, and some other places, it has been held that a substantial compliance with the contract is sufficient to enable the contractor to recover: Erie City v. Butler, supra; Watson v. City of Philadelphia, 93 Pa. 111. If deficient in some minor particulars, the defendant can only have a deduction for such defects. Here the defendant does not say to what extent she has been injured by the defective character of the work. She says the work was let at a high price, but is silent as to what would have been a fair price therefor.

It was said in Erie City v. Butler, supra: “ When work of this kind is done by contract with the municipal authorities, the said authorities paying therefor, and then collecting the same from the property owners, .... and the work is accepted by the city authorities, it is at least doubtful whether a defence of this kind could be set up. This was conceded by the learned counsel for the defendant.” We are not required to decide any such question in this case, as the averments in the affidavit of defence are too vague and unsatisfactory to carry the case to the jury.

Judgment affirmed.