
    Chester City, Appellant, v. Lane
    March 14, 1904:
    (No. 3).
    Argued Nov. 17, 1908.
    Appeal, No. 27, Oct. T., 1903, by plaintiff, from judgment of C. P. Delaware Co., JuneT., 1902, No. 31, for defendant on municipal lien in case of City of Chester to use of James Robinson et al. v. Fannie S. Lane.
    Before Rice, P. J., Beaver, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
   Opinion by

Rice, P. J.,

In this case the claim was made up in part “ by an item of forty-four and 46-100 dollars for grading, or cutting down an embankment in front of defendant’s property, about the full width of said sidewalk and averaging about two feet in height,, which grading was necessary before said curbing and paving could be done, in order that the said sidewalk would conform to the grade of the roadway.” Except as to the height of the embankment this case is in all particulars the same as the two preceding cases between the same parties.. It differs only as to the amount of excavating that was required to' make the grade of the footway conform to the changed grade of the driveway. Upon the principle decided in those cases the defense was prima facie valid; and in the absence of contradicting, qualifying or explanatory allegations in the replication the court was right in holding that the defendant, having been notified to do the work as an entirety, was not under obligation to select spots here and there where the embankment was less than two feet in height and curb and pave them.

Judgment affirmed.  