38 Pa. Super. 382 | Pa. Super. Ct. | 1909
Opinion by
This is a scire facias upon a municipal lien for paving Tacony street, under the provisions of an ordinance approved June 30, 1904. An affidavit of defense was filed which the appellant contends averred facts which established that the work was the repaving of a city street and not an original paving for which the property owner was liable. The court below made absolute a rule for judgment for want of a sufficient affidavit of defense, and the defendant appeals.
The affidavit of defense contained the following material averments. Tacony street was formerly known as State road, and was open and in existence in front of defendant’s property prior to the year 1854, when the borough of Frankford was consolidated with the city of Philadelphia; that on March 3,1854, P. L. 143, an act of assembly was passed authorizing the construction of a plank road by a company to be known as the Tacony & Poquessin Plank Road Company; that said company was organized in July, 1854, and soon afterwards completed that part of their road on what is now Tacony street; that prior to 1860, gas pipes were laid in the road in front of the property now owned by the defendant; that on April 3, 1860, P. L. 625, an act of assembly was approved which authorized the plank road company to
The ordinance of December 5, 1902, authorizing the laying of water mains for the distribution of filtered water in Tacony and other streets, did not specifically authorize the paving of any street, 'it simply authorized the proper officers to remove and relay such street paving as was necessary to permit the construction of the mains for the distribution of filtered water. The affidavit of defense specifically avers that the macadamizing was not replaced upon the part of Tacony street in question; there was, therefore, no paving of the street under the provisions of that ordinance. The affidavit does not deny that the paving for which this lien was filed was laid under the authority and in accordance with the provisions of the ordinance of June 30, 1904. The authorities hereinbefore cited dispose of all
The judgment is affirmed.