Philadelphia v. Dibeler

Per Curiam,

We do not think the learned judge below committed error in refusing to admit in evidence, “the contract of William B. Conklin with the city of Philadelphia, dated Jan. T4, 1884, to regrade Woodland avenue, from the end of the stone pavement near 50th street to Cobb’s creek, and to macadamize the southeast side thereof, and also the bills and statements showing a settlement with Conklin for said work.” Had the evidence referred to been admitted, it would have been the duty of the court to declare, as matter of law, that it did not amount to a defence to the claim of the city for paving. The contract was made, and the work was done, under an ordinance of the councils of Philadelphia, approved Nov. 5, 1883, authorizing certain transfers in annual appropriations. Of the amounts so transferred the sum of $20,000 was appropriated for repairing Woodland avenue, the street in question. This was not in any sense a paving of said avenue. That it was a substantial repair is n'ot to the purpose. It rests with councils, as we have repeatedly said, to designate what street shall be paved, and the character of the pavement. When, therefore, the city authorities proceed to repair a street, it cannot be said to be. a paving of said street, although said repairs should be extensive, and of a reasonably permanent character. It is to be noted that the repair of this street was done at the expense of the city, and not that of the abutting property owners.

Judgment affirmed.