Citation Numbers: 143 A. 20, 293 Pa. 360
Judges: OPINION BY MR. JUSTICE KEPHART, May 14, 1928:
Filed Date: 4/17/1928
Status: Precedential
Modified Date: 1/13/2023
Argued April 17, 1928.
This appeal is from a judgment directed to be entered for want of a sufficient affidavit of defense in a sci. fa. sur municipal lien for street paving. Appellant's reasons for resisting the claim are, (1) that the street was originally paved by the West Philadelphia Passenger Railway Co., thus relieving appellant's property from further liability for repaving, and (2) the city, in accepting from the successor of the West Philadelphia Passenger Railway Co. a large sum of money in payment of the obligation to pave the street in front of appellant's property, released it from any claim: Phila. v. Phila., Trustee,
The pleadings in this case do not refer to or set forth any ordinance or agreement, if such exists, requiring *Page 362
the West Philadelphia Passenger Railway Co. to pave this street, nor is there any averment as to why they are not pleaded. As these matters are important factors on which defendant relies, copies should be attached to the affidavit, or reasons for their absence should appear: Hebb v. Ins. Co.,
The mere assertion in the affidavit that another similar portion of the same street had been paved at the city's expense, without more, would not discharge the liability of an abuttor's property for the paving. The affidavit avers that the city, through its suryevor's office, approved the plans for the paving used by the trolley company. These officers, unless specifically authorized, could not usurp the functions of the city council and express the will of the city as to whether the construction should be adopted as a first pavement. They could not thus conclude the city from assessing the just proportion of cost of paving against the property fronting on the street: York v. Holtzapple,
If there was an obligation to pave that continued to and was assumed by the Philadelphia Rapid Transit Co., the second defense would be very serious. Appellee is mistaken in stating that Phila. v. Phila., Trustee, supra, has ceased to be the law. Neither Phila. v. Scholl, supra, nor Phila. v. Clark, supra, is authority for such proposition. In the former, where a similar defense was entered, it was stated the defense would have to be sustained if the premises on which it was based were sound. It was not sound for the reason that neither contract nor ordinance required the company to pave this street, and the Clark Case was one of repaving. But, in addition to what we have stated as to the contract and ordinance, the claim does not show that paving between the rails or in the car track area was included, nor does the affidavit set forth any information from which the fact could be found. The enabling ordinance only directed paving between rails when necessary.
Judgment affirmed. *Page 364
Hebb v. Kittanning Ins. , 138 Pa. 174 ( 1890 )
Philadelphia ex rel. Mack v. Eddleman , 169 Pa. 452 ( 1895 )
Philadelphia to Use v. Burk , 288 Pa. 383 ( 1926 )
Harrisburg v. Funk , 200 Pa. 348 ( 1901 )
Dick v. Philadelphia , 197 Pa. 467 ( 1901 )
Philadelphia v. Philadelphia , 244 Pa. 224 ( 1914 )
Philadelphia v. Hafer , 38 Pa. Super. 382 ( 1909 )
Philadelphia v. Kerchner , 62 Pa. Super. 562 ( 1916 )
Pottsville v. Jones , 63 Pa. Super. 180 ( 1916 )
York City v. Holtzapple , 67 Pa. Super. 596 ( 1917 )
Philadelphia v. Scholl , 68 Pa. Super. 404 ( 1917 )
Philadelphia v. Clark , 269 Pa. 513 ( 1921 )