Howell v. City of Philadelphia

38 Pa. 471

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1861
• Status: Published

Opinion

The opinion of the court was delivered by

Woodward, J.

— The principles of the ruling in the cases of the Board of Health v. The Church, 11 Harris 259, and Philadelphia v. The Railroad Co., 9 Casey 43, are a sufficient answer to the only error which was thought worthy of a printed argument. Considering that the contracts under which this paving and curbing were done expressly stipulated that the city should not be at any expense for the same, except for paving intersections, it seems strange that the market plat retained by the city, along the centre of York street, should be supposed to impose a liability upon her, even if the doctrine of the adjudged cases above mentioned did not forbid it. Neither upon general principles nor upon the particular facts of this case, is there a shadow of ground for charging the city.

The objection to the lien for want of dates might have been formidable on demurrer, or a motion to strike off, but after pleading to the scire facias it must be considered as waived: 12 Casey 348. The judgment is affirmed.