Opinion by
Rice, P. J.,For present purposes the allegation of paragraph 4 of the affidavit of defense must be accepted as verity. Therefore, the ordinance of July 19, 1902, will be left out of view in the determination of the question presented by this appeal from the court’s refusal to enter judgment for the plaintiff notwithstanding the affidavit of defense. Paragraph 7 of the affidavit is in the nature of a legal conclusion, but paragraphs 5 and 6 allege facts which in our judgment are sufficient to prevent summary judgment.
In Phila. v. Eddleman, 169 Pa. 452, Mr. Justice Mitchell elaborately reviewed all the pertinent decisions up to that time, and deduced therefrom this rule: “A first pavement therefore, in the legal sense, which exempts the abutting property owner from liability for any subsequent improvement, may be defined generally as one that is put down originally or adopted or 'acquiesced in subsequently, by the municipal authority, for the purpose and with the intent of changing an ordinary road into a street. It may be of macadam or of anything élse. That is a matter of evidence only. If the purpose and intent be wanting, a mere surfacing of the road, however carefully or expensively done, will not be a paving, but if the intent and purpose are present, or to be fairly inferred, then there is a paving whatever the material may be.”
True, Justice Mitchell said in the same connection, it might perhaps be stated as a corollary to the rule that, “prima facie, macadamizing is not a street paving in Philadelphia or probably in other large cities, while on the other hand there may be a presumption the other way in smaller cities or towns.” Giving to this utterance the force and effect of a positive decision, there cannot be deduced from it the legal conclusion, prima *323facie or absolute, that paving a street in Philadelphia with the materials and in the manner described in the sixth paragraph of the affidavit is a mere surfacing or a mere repairing of the street, and is not an original street paving, within the true scope of the general rule. See Leake v. Phila., 171 Pa. 125.
Recurring to the general rule, it is seen that the controlling consideration in the determination of this class of cases is the absence or presence of the municipal purpose and intent of changing an ordinary road into a street. These must be proved, but not necessarily by formal ordinance declaring the purpose to change the character of the street: Chester City v. Evans, 32 Pa. Superior Ct. 641. As clearly appears in the foregoing statement of the rule, they may be inferred; and Harrisburg v. Funk, 200 Pa. 348; and Phila. v. Hafer, 38 Pa. Superior Ct. 382, which are relied upon by appellant’s counsel, do not decide they may not be. Here, it is true, the affidavit of defense does not allege, in so many words, what the purpose and intent of the municipality was; but it does allege that the paving described in the sixth paragraph was done by the city by its duly authorized agent, the department of public works, and that thereby Upsal street, between Wayne avenue and Wissahickon avenue, was converted “from its former character of a road into a public highway or city street.” In the absence of anything to the contrary, it seems reasonable to infer that the city’s purpose and intention were to do what was actually accomplished.
In a long line of cases, beginning with Griffith v. Sitgreaves, 81 * Pa. 378, it has invariably been held that the act of 1874, allowing an appeal from an order discharging a rule for judgment for want of a sufficient affidavit of defense, was intended to reach only clear cases of error of law, and that in doubtful cases, especially those requiring broad inquiry into the facts, the matter in controversy should go to a jury trial. Concluding, as we do, after careful consideration, that *324the appeal in the present case is within this well-settled rule, we have not discussed the merits of the case or the principles of law applicable to it further than seemed necessary to show the grounds of our conclusion.
With regard to the counterclaim set up in the affidavit of defense, it is to be noticed that it is not made by reason of any contract between the use plaintiff and the defendant, but is a claim made against the legal plaintiff, the city of Philadelphia, and, therefore, as counsel for appellant correctly say, comes within the ruling of McCracken v. Elder, 34 Pa. 239.
The appeal is dismissed at the costs of the appellant, without prejudice, etc.