County of Lancaster v. Kendig 128 Pa. 601

COUNTY OF LANCASTER v. W. E. KENDIG. [In re Opening of First Street.]

ERROR TO THE COURT OF COMMON PLEAS OF LANCASTER COUNTY.

Argued May 24, 1889

Decided October 7, 1889.

Before Sterrett, Clark, Williams, McCollum and Mitchell, JJ.

No. 261 January Term 1889, Sup. Ct.; court below, No. 48 October Term 1884, C. P.

On October 7, 1884, an issue was framed between William E. Kendig, as plaintiff, and the city of Lancaster and the county of Lancaster, as defendants, to ascertain the amount of damages sustained by the plaintiff, by reason of the opening of First street in the city of Lancaster. Judgment by consent was entered on August 81, 1886, in favor of the plaintiff against the city for $400, and against the county for $900.

On July 5, 1888, on motion of the plaintiff in the issue, the court granted a rule on the commissioners of the county to show cause why the amount of the judgment against the county should not be paid out of the county treasury. On September 5, 1888, the commissioners filed an answer in which they made substantially the same averments as in their answer filed to the petition of Jacob L. Frey; see Lancaster Co. v. Frey, ante, p. 593. After argument, the court, Patterson, J., made *602the rule absolute and entered an order directing that the county of Lancaster pay to Kendig the amount of his judgment against the county.- The respondents thereupon took this writ assigning said order as error. The cause was argued with Lancaster Co. y. Frey, ante, p. 593.

Mr. W. F. Beyer and Mr. A. F. Bostetter (with them Mr. Gceorge A. Lane, County Solicitor), for the plaintiff in error.

Mr. Gceorge Bauman and Mr. Marriott Brosius, for the defendant in error.