dissenting:
I assume it will not be questioned, that if a property owner be duly required and notified to lay a particular kind of sidewalk, the borough cannot enter a lien against his land for the cost of a different kind of sidewalk, and the additional penalty, without a new notice to him and a reasonable opportunity to comply with it: Pittsburg v. Biggert, 23 Pa. Superior Ct. 540; Shady Avenue, 34 Pa. Superior Ct. 327. As I view this case, the agreement between the borough and the defendant, as to the kind of sidewalk to be-laid, took the place of notice on the part of the borough to lay that kind. When the defendant de*639faulted under the agreement, the right of election which he may have had under the former notice did not revive; neither did the borough’s right of election under that notice revive. The right of election under that notice’ had been superseded by the agreement that a brick sidewalk should be laid. That agreement was part of a larger agreement which had been partially executed, and, in consequence, the status quo could not be restored. The borough might have laid a brick sidewalk in accordance with the agreement, thus treating the agreement as the equivalent of notice to lay the kind of sidewalk therein designated. But a condition precedent to the right to lay a different kind of sidewalk at his cost, was notice to the property owner, and a reasonable opportunity to comply with it. I cannot assent, therefore, to the proposition that the agreement is to be entirely disregarded in the determination of the question before us, for as already suggested, the status quo could not be wholly restored. This being so, it seems unreasonable to hold that the borough might rescind the agreement as to the kind of sidewalk to be laid, and fall back on the original notice that had been given to the property owner.
Henderson, J., concurs in foregoing dissent.