
    Pittsburgh, to use, Appellant, v. Bucanelly Construction Co. et al.
    
      Argued March 20, 1930.
    Before Moschzisker, C. J., Frazer, Walling, Simpson, Sadler and Schaffer, JJ.
    
      Roland A. McCrady, with him M. H. Hirschfield, for appellant.
    , Morris M. Berger, with him Morris C. Levy and Benjamin B. Crone, for appellee.
    
      A. E. Kountz and C. A. Fry, for Robert C. Sproul, trustee, intervening appellee, were not heard.
    April 14, 1930:
   Per Curiam,

The use-plaintiff furnished certain material which entered into the construction of a reservoir built by the legal plaintiff, and, not being paid by the Bucanelly Construction Company, contractor and first named defendant, it, the use-plaintiff, brought the present suit, on a bond furnished by the Southern Surety Company, second named defendant. The court below properly held that the Act of May 10,1917, P. L. 158, amended by the Act of May 6, 1925, P. L. 546, had no proper application to a bond given in connection with the construction of a reservoir, and the recital in the bond here sued on plainly shows that this obligation was undertaken on the mistaken theory, entertained by all parties concerned, that the above mentioned legislation, recited therein, required such a bond. The law controlling this state of affairs was recently ruled by us against the contentions of the present appellant, in Patterson v. New Eagle Boro., 294 Pa. 401, and that decision controls the present case in favor of appellee.

The judgment of the court below is affirmed.  