City of Philadelphia v. Wistar

• Decision Date: 19 January 1880
• Citation: 92 Pa. 404
• Parties: City of Philadelphia, to use of Johnson, <I>versus</I> Wistar.
• Court: Pennsylvania Supreme Court

Page 404

92 Pa. 404

City of Philadelphia, to use of Johnson, versus Wistar.

Supreme Court of Pennsylvania.

January 9, 1880.

January 19, 1880.

January 9th 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ. GREEN, J., absent

Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1879, No. 37.

David W. Sellers, for plaintiffs in error.—The fourth plea is double and cannot be replied to issuably. It avers several facts which are immaterial. It purports to plead as to matters of fact but vaguely suggests matters of law. And the material matters therein are at issue in the first and second pleas.

In reading the fifth plea, it will be perceived that it is doubtful if defendant meant to aver that the curb laid by him was on the line at which the curb was set by claimants. The claim referred to a curb-line fixed under the ordinance of 1872. The plea does not aver that the curb was on a different line. To avoid mistake, the replication made a new assignment, that the curbing done was not on the line for which the claim was filed. If claimants had traversed plea on the theory that it meant to traverse the claim, a departure might have taken place in pleading, according as the judge at Nisi Prius might have construed it. As, however, from the demurrer the defendant construes his plea to mean that he had curbed his footway when it was of a different width, judgment should have gone for the plaintiff on the whole pleading, unless it be held that the city is powerless to change the width of a footway on a public street, and if she does so, it cannot be curbed at the expense of the owner.

It may be conceded that the court below was right in entering judgment for the defendant on the whole record, if it was right in entering judgment in his favor on the other pleas: 1 Saund. Rep., 80 a, Note 1; but it is error, unless the first plea, to wit.: nil debet, and the second plea, to wit: payment with leave, be considered as withdrawn. To allow these to stand, and yet pass judgment on the whole record, is error.

J. Howard Gendell, for defendant in error.—Local assessments are only constitutional when they are imposed for local improvements, which clearly confer special benefits on the property assessed, and to the extent of that benefit. Where, in compliance with the law for the time being, a pavement is laid down by an owner which is of proper and sufficient width, similar in style to those in other parts of the city, well laid, remaining in...