Lawrence McFadden Co. v. Philadelphia

Citations

• 59 Pa. Super. 44
• 1915 Pa. Super. LEXIS 20

Syllabus

<p>Road law — Change of grade — Municipal ordinance — Pleading.</p> <p>1. An agreement of counsel to waive pleadings does not relieve a plaintiff from proving his case with the same measure of proof necessary to establish it as if such agreement had not been entered into.</p> <p>2. On an appeal from an award of viewers in a change of grade proceeding, where counsel have agreed to waive pleadings, and it appears that all the plaintiff was required to do was to show that the work was actually done pursuant to some existing municipal authority, the production of an unrepealed ordinance, meeting the situation, is all that is required to show existing municipal authority.</p> <p>3. If in such a case the city alleges that the work was done under a later ordinance, it must produce in evidence such ordinance.' The mere testimony of a clerk that the contract for doing the work was let under the later ordinance, is insufficient.</p> <p>4. An ordinance is not an enactment of which judicial notice may be taken. The existence of the ordinance must be proved like any other fact.</p> <p>5. On the trial of an appeal from an award of viewers in a change of grade proceeding, evidence is admissible to show what uses the property was capable of, and how such uses had been interfered with.</p> <p>6. In such a case the amount and cost of filling required to make the lot conform to, or be available for use at the new grade are competent, not as independent items of damages, but as elements to be taken into consideration by the jury, together with the other circumstances, in determining the market value of the property before and after the change of grade.</p> <p>Practice, C. P. — Trial—Withdrawal of juror — Continuance of case— Discretion of court.</p> <p>7. The appellate court will not review the discretion of the trial judge in overruling a motion to withdraw a juror and continue the case, because a witness who had testified adversely to plaintiff at a previous trial failed to appear an