Schenley v. Commonwealth ex rel. City of Allegheny

The opinion of the court was delivered by

Strong, J.

Referring to the two other cases between the same parties decided at this term, for our views of most of the questions raised by this record, we notice here only the answers of the court below to the 16th and 17th points submitted by the defendants.

In regard to the first of these, we remark, that the Act of 1852 required that the assessment filed by the street commissioners should contain a description of the property (subject to the charge) “sufficient to identify-it.” No more certainty-was demanded. Here it was described as bounded on three sides by well-known streets, and on the fourth side by a street not then opened, but which, if extended from the point where it now terminates, would occupy the exact position called for in the' description, making the length and breadth of the lot precisely as called for. Surely it was not for the court to say the lot was not identified. It was a question of fact for the jury, and to the jury it was referred.

We entirely concur also with the answer of the court to the defendants’ seventeenth and last proposition. The. grading and paving of each street was,under a separate contract, though the contractors happened to be the same. It may be, that they were facilitated in their work by their ability to use the material excavated in one street for filling another; but the city could reap no advantage from that. . And the defendants were liable for the expenses of the work. |;The court took care that they should not. be injured. The jury were told that if the grading was estimated in accordance with the universal and only rule in such cases, and allowed for in accordance with the terms of the contract, then the assessment made in accordance with said estimate and allowance, is not against equity, and a fraud on defendants’ rights. Beyond this the court could not have gone.

Judgment affirmed.