York City v. Stauffer

Opinion by Pobtek, J., The opinion of the learned judge of the court below, in disposing of the motion of the appellant for judgment non obstante veredicto, which will appear in the report of this case, so satisfactorily sustains the conclusion which he reached that extended discussion of the question presented by this appeal is not necessary. The improvement for which the city'filed this claim against the property of the defendant involved the paving of only one square of a street. The middle of the street was occupied by a double-track street railway and the petition, the ordinance and the contract for the paving required that the part of the street between the outer tracks of the railway should be paved by the street railway company; thus leaving only a strip, between the railway tracks and the curb, on each side of the street, to be improved by the city and the cost assessed upon abutting property. The petition, which this defendant signed, authorized the city to do the work contemplated and assess the cost thereof upon abutting property “according to the foot-front rule,” in so far as the signers of the petition were competent to confer that authority. The city by ordinance duly passed authorized the pavement of South George street from King street to Princess street, one square in length, as prayed for in the petition, said ordinance providing that the cost of the improvement should be assessed by the city engineer “at the completion of the improvement by apportioning the [589] entire cost, except intersections and the part to be paved by the York Railways Company, or its successors, on all the properties fronting on said highway in proportion to the number of feet each property fronts thereon.” The city let a contract to the Filbert Paving & Construction Co., for the paving of the street “from King Street to Princess Street with sheet asphalt, .... excepting the intersections of highways now paved, and the part to be paved by the Street Passenger Railways Company.” The work provided for by the contract, the cost of which the city attempts to assess upon abutting property, did not cover the part of the street included within the railway tracks. The city having discovered, after the contract was let but before the work had proceeded far, that certain property owners who had not signed the petition had signified their intention to refuse to pay any part of the cost of the paving, upon the ground that it was a repaving, not properly assessable against abutting property, directed the contractor not to pave in front of the properties whose owners had not signed the petition. The contractor acquiesced in this arrangement, and the result was that the street was paved in spots, and not in the manner contemplated by the petition of the property owners and authorized by the ordinance under which the work was done. The part of the street immediately in front of the property of this defendant was paved, but no work whatever was done between the street car track and the curb on the other side of the street, directly opposite the property of the defendant. The city did no paving whatever, on either side of the street, for a distance of over fifty feet, near the center of the square, and within seventy-five feet of defendant’s property. Let it be conceded that, because the defendant signed the petition for the improvement, he must be held estopped to assert that the street had formerly been paved and that his property was not liable for the cost of the repaving. This defendant is not seeking to escape liability upon the ground that this was a re [590] paving of the street, he is only contending that he has the right to be treated as if the street never had been paved. What the defendant asked the city to do, when he signed the petition, was to pave the street for' one square of its length, and consented that his property should be assessed according to the foot-front rule, if the street was so paved. When a property owner in a city of the third class petitions for the paving of a street, the cost to be assessed “by an equal assessment on said property in proportion to the number of feet the same fronts on the street,” under the provisions of the Act of May 16, 1889, P. L. 228, he does not undertake merely to pay the exact cost of the paving in front of his own particular property, his agreement is to pay his proportionate share of the cost of the whole improvement: Scranton v. Koehler, 200 Pa. 126. This was not a case of substantial performance of the work contemplated by the ordinance and required by the contract. The work was not done in a defective manner, it was not done at all. The city abandoned the work, as to one-fourth the length of the street upon one side and one-fifth the length of the street upon the other side of the street car track, and this was not at one end of the square, but almost at the middle of. the improvement, thus cutting it into two distinct parts. This was a willful departure from the terms of the ordinance and contract and must defeat a recovery for any part of the price: Philadelphia v. Pemberton, 208 Pa. 214. The city having failed to pave the street in the manner contemplated by the ordinance, and having paved it only at intervals, this led the engineer to make the assessment in a manner which he was not authorized to do. The assessment was not made upon the properties abutting on George street, between King street and Princess street, as contemplated by the petition, the ordinance and the statute which authorized the assessment, “by an equal assessment on said property in proportion to the number of feet the same fronts on the street.” The engineer, no doubt recognizing the fact that he could not assess the property in front of which the city [591] had not paved, proceeded to distribute the cost of the work done by assessing it against the property of those who had signed the petition. This was beyond his jurisdiction. The judgment is affirmed.