
    The City of Philadelphia to use of W. P. Clement and George W. Ruch, trading as Clement & Ruch, v. The Philadelphia & Frankford Railroad Company, Owner and Registered Owner, Appellant.
    October 5, 1896 :
    Argued March 26, 1896.
    Appeal, No. 33, Jan. T., 1896, by defendant, from order of C. P. No. 3, Phila. Co., March T., 1895, No. 172, M. L. D., making absolute a rule for judgment for want of a sufficient affidavit of defense.
    Before Sterrett, C. J., Green, McCollum, Mitchell and Dean, JJ.
    Affirmed.
    Mitchell, J., dissents.
    
      Thomas Hart, Jr., for appellant.
    
      Charles H. Edmunds, for appellee.
   Opinion by

Mr. Justice Dean,

This appeal raises the same questions as those in case of same plaintiff to use of John McCann.v. same defendant, supra, 292, opinion handed down this day.

The judgment is affirmed for same reasons.

Mitchell, J.,

dissenting:

. It is conceded that the roadbed or other part of the property essential to the franchise is not subject to taxation or municipal charges, while property merely convenient may be. The affidavits in these cases raise questions of fact as to which class the premises liened belong, and I would send the cases to a jury to settle these questions before judgment, and not leave them to future contest as suggested in the opinion of the court.  