square yard. On August 12th, 1920, work started under this second contract and this work was completed on November 10th, 1920. On December 10th, 1920, an assessment was laid for the work done under this second contract, included in which assessment was the paving for the work done in front of defendant's properties under the second contract, and at the price provided for in the second contract, and for the curbing in front of the defendant's properties done under the first contract. This assessment for the paving along defendant's properties was based upon the cost of the work per square yard and was not in any way based upon the total cost of the work and the defendant's proportion thereof.

7. The defendant's properties against which the municipal lien in question was laid were located along the ine of the improvement as authorized by said ordinance of February 29th, 1916. The curbing along the defendant's properties was done under the said first contract but the paving in front of these properties was done under the contract of August 12th, 1920, and called the second contract.

DISCUSSION.

The undisputed facts here found raise the question whether a municipal improvement under the ordinance in question can be assessed in any other way than upon what is known as the "foot front plan," involved in which is the question whether an assessment can be made under one of these contracts without taking into account the other. The assessment in question was made for the cost of the improvement along the property of the defendant without respect to the total cost of the improvement, and the assessment was made under a second contract made by the City of Allentown for the unfinished portion of said improvement, upon a basis of $4.46 per square yard for the paving along the defendant's properties, while under a prior contract for a part of the same improvement, property owners along which the work had been finished under said first contract, were assessed upon the basis of $1.89 per square yard.

While a city of the third class has power to change contracts for municipal improvements without the consent of property owners along the line of said improvement, when done in good faith, Marshall v. Allegheny

City, 59 Pa. 455; Allegheny v. Blair, 74 Pa. 225, Tarentum Boro v. Moorehead, 26 Pa. Sup. Ct. 273, yet where the contracts cover a single improvement under an ordinance providing for payment by the foot front rule, there can be but one assessment and that must be apportioned among all the property owners in the proportion which the respective frontages bear to the total cost. "The amount due from each owner is for the proportion of the cost of the whole improvement, which the frontage of each property bears to the entire frontage paved." Seranton v. Koehler, 200 Pa. 126; Tarentum Boro. v. Moorehead, 26 Pa. Sup. Ct., 273, 278; Philadelphia v. Ramsey, 72 Pa. Sup. Ct. 185.

This conclusion is not changed by a consideration of Philadelphia v. Street, 41 Pa. Sup. Ct. 503, where an ordinance provided for the paving of a number of squares of a city street and before any work was done the ordinance was amended providing for the paving in blocks so that each could be called a separate improvement.

The assessment in question was not made upon the foot front plan as provided by the ordinance and authorized by the Act of Assembly governing third class cities, and therefore judgment will have to be entered for the defendant.

CONCLUSIONS OF LAW.

The court also states the following conclusions of law.

1. The only valid assessment against the defendant for said paving must be according to the foot front rule. 2. The assessment upon which said lien is based was not laid according to the foot front rule.

3. Only one assessment under the ordinance in question could be laid and that only after the completion of the improvement of said street, and could only be based upon the total cost of the work under both of the contracts in question.

4. The assessment, upon which the lien in question is based, was a second assessment for the same improvement of said street based upon the second paving contract, differing from the first assessment and at the then price per yard.

5. The assessment in question is invalid and the lien against the defendant must fall with it.

6. Judgment must be rendered for the defendant. 7. The costs of this proceeding must be paid by the plaintiff.

And now, to wit: December 22, 1922, the Prothonotary is directed to give written notice of the filing of this opinion to the parties in this suit, or their attorneys, and if no exceptions are filed thereto within thirty days after service of such notice, judgment in favor of the defendant at the cost of the plaintiff, shall be entered thereon by the Prothonotary without further order of the court.

KLEIN v. EDELMAN.

Practice, C. P.-Affidavit of Defense-Sufficiency-Promissory

Notes.

When there is anything upon the record at the time a motion is made for judgment for want of a sufficient affidavit of defense which shows for any reason that the plaintiff is not entitled to judgment, it is the duty of the court to deny the motion and send the case to a jury.

An affidavit of defense, on a suit brought on a promissory note, denying that plaintiff became the holder for value before maturity, raises an issue of fact.

In the Court of Common Pleas of Lehigh County. No. 11 January Term, 1923. Henry W. Klein, trading as Klein Motor Car Company, v. George A. Edelman, Edward D. Strunk and I. F. Good. Assumpsit. Rule for Judgment for Want of a Sufficient Affidavit of Defense. Rule Discharged.

man.

Dallas Dillinger, for Plaintiff.

Julius M. Rapoport, for Defendant. George A. Edel

Groman, C. J., December 18, 1922. Plaintiff filed a statement of claim, and George A. Edelman, one of the defendants, an affidavit of defense. A rule for judgment for want of sufficient affidavit of defense was granted. and the matter thus brought before us. The pleadings above referred to must determine the right of the plaintiff to a judgment against George A. Edelman, one of the defendants, for want of a sufficient affidavit of defense: Lane

v. Sand Co. 172 Pa. St., page 252 (1896); Phila. v. Pierson, 211 Pa. St., page 388 (1905); Hutton v. McLaughlin, 1 Pa. Sup. Ct., page 642 (1896); Assistance B. & L. Asso. v. Wampole, 6 Pa. Sup. Ct., page 238 (1897); Scranton City v. Watson, 61 Pa. Sup. Ct., page 86 (1915).

An examination of the statement of claim, paragraph four, discloses that the plaintiff sets forth that he became the holder for value before maturity of the note sued on, a copy of which is attached to the statement. In the affidavit of defense, in answer to said paragraph four of plaintiff's statement, the same defendant denies that plaintiff became the holder for value before maturity. This raises questions of fact which cannot be determined by the court, but must be passed upon by a jury: Wilkinson v. Brice, 148 Pa. St., page 153 (1892); Emig v. Spatz, 155 Pa. St. page 642 (1893); Holland v. Iron Works, 9 Pa. Sup. Ct., page 261 (1899); Diamond Power Specialty Co. v. Milne, 67 Pa. Sup. Ct., page 223 (1917); Knapp Co., Inc. v. Saul, 77 Pa. Sup. Ct., page 55 (1921). Since judgment cannot be entered for the above reasons, the rule for judgment for want of sufficient affidavit of defense must be discharged.

Now, December 18, 1922, rule for judgment for want of sufficient affidavit of defense discharged.

CASSONE v. ALYEA-NICHOLS CO.
Actions-Parties-Pleadings-Plaintiff's

ing Off.

Statement-Strik

Where a suit is brought against a defendant as attorney-in-fact for certain parties (naming them), the real and only defendant is the attorney-in-fact, and not his principals.

The principals in such a suit are not in court, and cannot question the proceedings or move to strike off the plaintiff's statement.

In the Court of Common Pleas of Lehigh County. William D. Cassone v. Alyea-Nichols Company, attorneyin-fact for the subscribers at the Belt Automobile Indemnity Association of El Paso, Ills. No. 1 October Term, 1922, Motion by the Subscribers, Etc., to Strike off Plaintiff's Statement.

J. H. Diefenderfer and Allen W. Hagenbuch, for Plaintiff.

Butz & Rupp and Lincoln L. Eyre, for Subscribers at Belt Automobile Indemnity Association.

Reno, J., December 18, 1922. The praecipe for summons, the summons and plaintiff's statement name and describe defendant as "Alyea-Nichols Company, attorney in fact for the subscribers at (sic) the Belt Automobile Indemnity Association of El Paso, Ills." Manifestly, Alyea-Nichols Company is the real defendant and the words, "attorney in fact for the subscribers at the Belt Automobile Indemnity Association of El Paso, Ills.," merely describe the capacity in which defendant is sued and the relation which defendant bears to "the subscribers at the Belt Automobile Indemnity Association of El Paso, Ills." We cannot believe that it was intended by that recital of capacity or relationship to bring either the subscribers or the Belt Automobile Indemnity Association upon the record as parties defendant. If it was so designed. the method employed frustrated the intent: Cf. Bullock v. Gaffigan, 100 Pa. 276.

The summons and statement were served, according to the sheriff's return, "on the Belt Automobile Indemnity Association by leaving," copies thereof, "in the office of the Insurance Commissioner of the Commonwealth of Pennsylvania, with Samuel W. McCollouch, deputy insurance commissioner, the lawful attorney, duly constituted by the said Belt Automobile Indemnity Association." There is no return of service upon AlyeaNichols Company nor upon "the subscribers at the Belt Automobile Indemnity Association of El Paso, Ills." No appearance has been entered for Alyea-Nichols Company nor for the Belt Automobile Indemnity Association. Butz and Rupp, Esqs., and with them Lincoln L. Eyre, Esq., appear, per praecipe filed, for "the subscribers at the Belt Automobile Indemnity Association of El Paso, Ills.;" and move to strike off plaintiff's statement. They do not represent that party who is, as we conceive it, the real and only defendant and since the real defendant is not regularly in court by the service of process upon it we must decline to consider the motion. Moreover they represent parties who have not been named as defendants or