198 A. 164 | Pa. | 1938
Nick Sansotta brought suit against the City of Pittsburgh to recover damages for injuries sustained in a fall on the alleged-to-be-negligently-maintained sidewalk in front of the building No. 85 Logan Street in that city. The municipality issued a writ of scire facias to bring upon the record, as additional defendant, Jacob A. Fuss, the record owner of the premises. He filed an affidavit of defense, denying liability and alleging that the premises at the time of the injuries to Sansotta were in the sole control and possession of Marcus W. Stoner, trustee of the estate of Amanda M. Dewhurst, deceased, as mortgagee, who had taken control and possession by reason of defaults in the payments provided for in the mortgage. Thereupon the city, by a writ of scire facias, brought Marcus W. Stoner, individually and as trustee, upon the record, the writ setting forth that Stoner, individually *201 and as trustee, is liable over to the city by reason of the fact that he "was mortgagee in possession of the property at 85 Logan St., Pittsburgh, Pa., on Dec. 2, 1935, and hence is primarily responsible for the defective and icy condition of the sidewalk in front of said premises, which plaintiff alleges caused the injury for which suit is brought, and which additional defendant had knowledge of."
The court made absolute a rule to show cause why the writ of scire facias should not be quashed, issued at the instance of Stoner, and from this action the city appeals.
The writ is a pleading, Vinnacombe v. Phila.,
We do not mean to say that there can be no liability on the part of mortgagees in possession of property: Fuller v. French,
The order is affirmed at appellant's cost.