
    Philadelphia, to use, Appellant, v. Spring Garden Farmers’ Market Co.
    
      Streets — Paving—Street Bailways — Affidavit of defence.
    
    An affidavit of defence to a municipal claim for street paving is sufficient to prevent judgment, which avers that the street upon which the paving was done is occupied by the tracks of a street railway company which, under the act of April 8, 1864, P. L. 296, is required to pave, repave and repair any streets which it occupied with its tracks.
    Argued Jan. 27, 1893.
    Appeal, No. 75, Jan T., 1893, by plaintiff, to use of William A. Nestor, from order of C. P. No. 1, Phila. Co., Sept. T., 1891, No. 583, M. L. D., discharging rule for judgment for want of a sufficient affidavit of
    defence. Before Paxson, C. J., Sterrett, Williams, McCollum, Mitchell and Dean, JJ.
    Scire facias sur municipal claim.
    The affidavit of defence was as follows :
    “ The claim on which this writ issued seeks to enforce a charge against the property therein described, to wit, on the south side of Spring Garden street, between Tenth street and Eleventh street, of which the defendant is the owner, for paving so much of the unpaved space of Spring Garden street as was reserved for market purposes and occupied by the old Spring Garden market sheds, and as was in front of the defendant’s property.
    “ Deponent further saith that at the time the paving of the market plots was authorized, and when the same were paved, Spring Garden street was occupied in front of defendant’s prop erty, and for a great distance east and west thereof by the tracks of the Union Passenger Railway Company, which company was incorporated by the act of April 8, 1864, P. L., 297, which act authorized said company to lay its tracks from Seventh street along Spring Garden street to Twenty-third street. Said act, by its 8th section, provided that the said company" shall be at the entire cost and expense of paving, repaving, and repairing that may be necessary upon any street where the tracks of said company may be laid.
    “ And deponent says that by reason of said act of assembly the ground of defendant is relieved of the cost and charge of the paving, if otherwise it was liable, and that the said railway company is, and that defendant is not, liable therefor.”
    The court, Allison, P. J., and Bregy, J., discharged a rule for judgment for want of a sufficient affidavit of defence.
    
      JSrror assigned was discharge of rule.
    
      George P. Pick, Francis S. Cantrell with him, for appellant.
    
      F. Carroll Brewster, Isaac JD. Yocum and Henry Brick with him, for appellee.
    February 18, 1893:
   Pee Curiam,

We are of opinion that under the circumstances of this case the learned court below was justified in refusing to enter judgment for want of a sufficient affidavit of defence. We prefer to let the case go to a jury and to decide the questions involved when it comes up, if it ever should, upon the trial in the court below.

Affirmed.  