City of Chester ex rel. Ross v. Eyre , 167 Pa. 308 ( 1895 )

Opinion by

Mr. Justice Fell,

Judgment was entered for want of a-sufficient affidavit of defense in a proceeding by scire facias upon a municipal lien for paving. The lien was filed in the name of the city of Chester to the use of the contractor who did the work. It is stated in the affidavit of defense “ that said paving was not done by the city of Chester, nor in pursuance of its authority, but was done as your deponent believes and expects to be able to prove by one Michael Ross, the use plaintiff in the above case, on his own motion and without the authority of the city to do so.” And in the supplemental affidavit it is averred “ that the work was not done by the street commissioner, but was done by Michael Ross, a private individual, and that he had no direction or authority from the city, but that on the contrary the city officials had decided that the work for which said lien was filed need not be done at the time it was done.”

The right of lien exists only when the work is done by the city. If the work is done for the city either under a specific contract to do the particular work or under a general employment to do all work required by city ordinances, the contractor may with the consent of the municipality use its name in filing a lien to his use. But the right of lien is the right of the municipality, and cannot even with its consent be exercised except when the work is done by its direction and for it. There is in the affidavit a distinct denial that the city authorized the work to be done, and this denial negatives any implication of authority springing from it which might arise from the fact that the lien • was filed in its name by the city solicitor. If the work was done by the use plaintiff at his own instance, without any authority from or contract with any one, no right of either lien or recovery exists.

The averments in the affidavit of defense put the plaintiff to proof of his authority, and were sufficient to prevent judgment and to carry the case to a jury.

The judgment is reversed with a procedendo.