PHILADELPHIA, to use v. O'BRIEN

Municipal claims — Paving — Original paving or repaving — Adoption by city of paving — Assessments — Summary judgments.

In a proceeding on a scire facias sur municipal lien, issued by the city against defendants for the paving of the cartway abutting their premises, in which it appeared that defendants in their affidavit of defense averred facts to show that the paving was actually a repaving and not an original paving, and that the city had adopted and acquiesced in the previous paving as an original paving; that defendants did not allege any specific ordinances of the city assessing a certain amount against each abutting landowner at the time of the original paving; and that the court below concluded that the pleadings presented a doubtful question of mixed law and fact and, in the circumstances, discharged plaintiff's rule for judgment for want of a sufficient affidavit of defense; it was Held that the order of the court below should be affirmed.

HIRT, J. dissented.

Argued March 18, 1954.