The opinion of the court was delivered by
Read, J.This is a scire facias on a claim filed in the name of the city against the defendant, for curbing and paving in front of his property on Orthodox street, Prankford. An ordinance or resolution of the 10th May 1858 authorized the highway department to notify the owners of property on this and other streets who have not curbed and paved their footways, to set their curb and grade and pave their footways in front of their respective properties, and in case they neglect or refuse to comply with their respective notices, the commissioner of highways is authorized to employ such parties on such portions of the -work who will engage to do the same, and collect the proper costs from the respective owners.
■ Upon the trial of the scire facias the city produced the ordinance or resolution and the claim or lien filed. By the 4th section of the Act of 11th March 1846, P. L. 111, “ such claims may in suits thereon be read as evidence of the facts therein set forth,” and by the preceding Act of 19th April 1843, P. L. 342, it was enacted that “ it shall only be required to be proved by the said district (now city) to entitle them to recover on the same, that the said work was done or the materials furnished and the just value thereof — and upon such trial it shall only be lawful for the defendant to deny that the said work was done or materials furnished, or prove that the price charged therefor is greater than the value thereof, or that the amount claimed has been paid or released.”
The only pleas were non assumpsit, payment with leave, &c., but no notice of special matter 'was given. Under the decisions of this court in The City of Philadelphia v. Wistar, 11 Casey 427, and Wistar v. City of Philadelphia, 18 Leg. Int. 348, I cannot understand how the defendant was permitted to call the chief commissioner of highways, who became so on the 18th or 19th of July 1859, to prove he gave no authority to pave Orthodox street, for the filing of the lien and the scire facias showed affirmatively that all the acts required to be done by them or their agents under the terms of the resolution had been complied with and ratified by the city. It would be singular, indeed, if under such a state of the pleadings, the defendant could be allowed to defeat the claim of the city, by producing its own officer to show that the work which the city has adopted was done without its consent. This was clearly a matter with which the defendant had nothing to do. This portion of the evidence of Jacob Shantz should therefore have been rejected. The remaining portion of the evidence on the part of the defendant was proper, as it tended to show the price charged therefor is greater than the value thereof.
This error of the court led to evidence in rebuttal on the part of the plaintiff, the city. So far as it concerned the defendant it was clearly shown that he had thirty days’ notice, agreeably to the resolution. Supposing the question to be open to the defend*546ant to defeat the city, by showing there was no employment of Emannel Peters to do the work, the court were in error in rejecting the offer to prove by McCarthy, chief commissioner of highways, that he employed him to do this paving, and also in refusing to allow the subsequent questions by the plaintiff to be put to the witness. We think also that the plaintiff should have been allowed to prove: 1st. That Dr. Burgin waived his right to a notice required by the ordinance ; and 2d. That he had stated to the workman who was going on with the work that it was all right, to go ahead.
It is not necessary to examine the charge, as it proceeded upon what we think was a cardinal error, that the city was obliged to prove the employment of Peters, by direct and positive proof of a contract, when all his acts had been adopted and ratified by the city.
Judgment reversed, and a venire de novo awarded.