Philadelphia ex rel. O'Rourke v. Bowman , 166 Pa. 393 ( 1895 )

Opinion by

Mb. Justice Green,

As this case raises onty a question of the sufficiency of the affidavit of defence to prevent judgment, we are of course not at liberty to regard any other'matters than such as appear in the affidavit. The action was a scire facias upon a municipal claim for paving the street in front of the defendant’s lot. The defence was that a designated passenger railway company was legally bound to do the work for which the claim was made, and therefore the defendant was not liable. In the case of Philadelphia v. The Spring Garden Market Co., 161 Pa. 522, we held that where the legislature has imposed upon a street railway company the obligation of paying for the original paving of a street, an abutting landowner can set up such legislative action as a defence to a suit brought by the city against himself to recover the cost of the original paving. Our Brother Mitchell, delivering the opinion, said, “We see nothing to prevent the property holder from taking advantage of the provisions of the act of 1864. That act, it is true, is a charter, and in that sense a contract between the state and the company,to which the property owner is not a party. But, as was said by Sharswood, J., in Penn. & Ohio Canal Co. v. Graham, 63 Pa. 290, ‘ the charter is indeed a contract imposing upon the corporation the burden of performing a certain duty to the public,’ and in the present case the intent is clear to put on the railway company that portion of the public duty which relates to the paving of streets, and thereby to relieve the abutting property owner.”

In the case at bar the affidavit of defence sets up the act of June 9, 1857, P. L. 802, which is a supplement to the charter of the Philadelphia and Delaware River Railroad Company, which subjects that company to any ordinances passed by the city councils with reference to the grading, paving, repaving, etc., of the streets over which their railway is laid, and a proviso that the said streets shall be kept in repair by the railway company. The affidavit further asserts that the railway built by the said company is laid upon the street on which the defendant’s property is situated, and further sets forth certain city ordinances which provide that all passenger railway companies within the city shall be at the entire cost and expense of maintaining, paving, repaving and repairing that may be necessary upon any road, street, avenue or alley occupied by them. The act of 1857 and the various ordinances of the city which are described in the affidavit of defence, make out an apparent non-liability of the defendant for the work claimed for in this action, and therefore it was error to enter judgment for want of a sufficient affidavit of defence. A discussion appears in the paper-books upon the effect of another and later ordinance of the city upon the defendant’s liability, but as that ordinance does not appear on the record, we can take no cognizance of it at this time.

A prima 'facie defence is set forth in the defendant’s affidavit and therefore judgment must be deferred until a final hearing.

Judgment reversed and procedendo awarded.