Fisher v. Reading Realty Co. , 1909 Pa. Super. LEXIS 159 ( 1909 )

Per Curiam,

This is an appeal by plaintiff from the discharge of the rule for judgment for want of a sufficient affidavit of defense. The legal questions are clearly stated in the opinion filed by the learned judge below. As we view the case it is not necessary to decide at this time whether the city’s claim was or was not an incumbrance upon the property at the time of the agreement and settlement thereunder. For even if it was, we think the learned judge has shown quite clearly that a fair construction of the entire agreement leads to the conclusion that the covenant upon which the plaintiff relies was not intended to apply to such a claim. We deem it unnecessary to add anything to what he has said in support of that conclusion.

The appeal is dismissed at the costs of the plaintiff, without prejudice to his right to a jury trial and a second appeal after final judgment.