Philadelphia v. Baker

21 A. 238, 140 Pa. 11, 1891 Pa. LEXIS 791

Opinion

Per Curiam:

It is a settled rule that whatever is contained in an affidavit of defence must be treated as verity upon a motion for judgment. And we may assume, as a general proposition, that a defendant will state his case as strongly in such affidavit as the facts will warrant. The converse of the above rule is that we cannot supply omissions in the affidavit, if there be any. We cannot presume that facts exist, essential to the defence, if they are not averred. A defective affidavit may be, and often is, cured below by filing a supplemental one; but, when the case reaches this court upon appeal, we must take it precisely as the affidavit discloses it. In this case, it does not go far enough to raise the question which was argued at bar. It was there conceded that the city has the right to determine the mode and style of paving primarily, yet there is no averment that the city in any way recognized the kind or quality of pavement which the defendant alleges was placed on Miller street.

Judgment affirmed.