It is not manifest that the plaintiff is entitled, under the present state of the pleadings, to a judgment for want of an affidavit of defence. The municipal lien of the plaintiff specifies: “The kind and character tof the work for which this claim is filed is the paving and curbing of an additional width of Edgemont Avenue, as permanently improved by the State Highway Department, on the southwesterly side thereof, in front of the above described property.” It further avers that the authority in part for asserting the lien, rests upon two ordinances of the borough, but these ordinances do not appear in the pleadings. The scire facias makes claim “for curbing on the southwesterly side thereof of the above described premises.”
The parties have urged this rule to our attention as one to be decided, depending on whether the paving is an original paving made by the borough, as the plaintiff contends, or whether an original paving had been previously made by plaintiff’s predecessor, .the Township of Chester, and adopted by the borough, as the defendant contends.
This question we are unable to decide at present. It is ordinarily a question of fact for a jury. Moreover, we do not know what is meant by an additional width of Edgemont Avenue, nor what is meant by a permanent improvement by the State Highway Department, nor do we know what the borough ordinances set forth, nor are we able to correct the manifest error in the scire facias.
We, therefore, discharge plaintiff’s rule for judgment.
Prom A. B. Geary, Chester, Fa.