
    HARRISBURG v. FUNK.
    July 26, 1900:
   Per Curiam,

We conclude from an examination of the record that but two questions are raised. The first is as to the constitutionality of the clause of the Act of May 23,1889, P. L. 277 (paragraph 10 of section 3 of article 5, p. 288), which authorizes cities of the third class to provide for the payment of the cost and expense of paving a city street “ by the owners of real estate bounding and abutting thereon, by an equal assessment on said property in proportion to the number of feet the same fronts on the street.” Upon that question we are all agreed. We hold that the clause is not unconstitutional, and have nothing to add in support of that conclusion to what is contained in our opinion in Harrisburg y. McPherran.

The second question is, whether under the evidence introduced and offered by the defendant the court was justified in declaring that this was not a repaving, and in giving binding instructions in favor of the plaintiff. Upon that question we are divided in opinion. As a majority of the judges of this court who heard the case are not convinced that the learned trial judge committed error-in instructing the jury that the evidence was insufficient to sustain a finding that there had been a former paving of the street, as defined in Philadelphia v. Eddleman, 169 Pa. 452, the judgment is affirmed.  