The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1900-04-25


Decisions were given by the super
Tor court, in Pittsburg, Monday, in
five Lackawanna cases, as follows.
Appeal of heirs of Peter Garvey. APP
peal quashed; Thomas McHale against
Throop borough, judgment affirmed:
James Manley heirs against the city
of Scranton, judgment reversed; Geo.
G.. Winans against l.. NJ. Bunnell,
judgment affirmed; ]. w. Guernsey
against w. C. Froude and Mrs. Will
liam Froude,. judgment reversed.
The appeal in the Garvey estate was
made by the three children, Martin
Garvey, Bridget Garvey and Mary Ann
Dolphin. They asked to have court
set aside a sale of their fathers real
estate, by which it was transferred to
relatives of their mother for $500. They
claim the property was worth $4,000.
The ground on which the petition was
based was that no notice was given
them, the next of kin. of the petition
for the sale, or of any proceeding had
under this petition. The local court
refused to set aside the sale and the
superior court now sustains this action.
In the case of Thomas McHale
against Throop borough the question
at issue was the liability of a munich
pality for damage resulting from a
defective fire hydrant Some time in
October, 1896 a wagon collided with
the fire hydrant in front of McHale's
premises. breaking the standpipe,
where it is Joined to the water main.
An excavation was made by some
workmen, under the direction of a
councilman, to discover the nature of
the break The trench which was dug
left depression on the surface after
it was filled in, and before the broken
hydrant was replaced the water from
the break in the pipe forced its way
through the ground, and following the
depression above referred to- found it's
way into McHale's lot. He sued for
damages and was awarded--a verdict
of 5000 in a trial before Judge Searle.
The borough appealed, but the superior
court affirmed the finding of the lower
court.
CONTENTION OF DEFENSE.
The contention of the defense was
that there was no duty devolving upon
the borough to provide fire hydrants,
and that where there is no duty there
is no negligence" or if there was
such a duty it was purely government
al and public and "its exercise is not
hampered Dy the common rule of re-
sponsibility to individuals" For in
stance a city is not liable for injuries
that would result to a person who
would be knocked down by-a fire en-
rri,,
of the councilman in digging the trench
which contributed to the turning Of
the water upon McHale's property the
defense maintained that in the first
place it was an unauthorized act, and
secondly, in performing acts discre-
tionary on its part or the purpose of
government and for the general pub
lies good without benefit to it in it's
corporate capacity, municipal cor
poratlon is not liable for the acts of
it's appointees or officers.
|. H. Burns and j. j. OMalley ap-
peared for McHale, and Vosburg &
Dawson for the borough.
BY the decision in the case of Manley
against the city, the Manley estate
escapes a $iS5,9O lien for asphalt paw
ing in front of 1871 North Washington
avenue. James Manley, the owner of
the property, died June 13, 1891. The
sheriffs service of the writ of sc!re
facias on the municipal lien was made
Sept. 2S, 1892. The return set forth
that the service was made on James
Manley. This, of course was impos-
sible as Manley had been dead fifteen
months. 1t was also shown the SER
vice, if made at all, was not made
ten days prior to the return day, as
required by law.
After the death Of Mrs Manley. in
1897, NJ. j. Kelly, guardian of the chill
dren discovered the Judgment on rec
ord, and on January 0, 1899. secured o
rule to strike off the return and iude-
ment. When court came to dispose of
the rule, it decided that as there was
no suggestion of any defense on the
merits Of the case, and as the parties
had allowed six years to elapse before
attacking the scire facias, the judg-
ment should not be disturbed. THE
parties concerned have been guilty of
great laches," the court said. This de-
cision the Superior court reverses.
Thomas p. Duffy and Richard j.
Bourke represented the appellants.
WINANs CASE.
The case of George G. Winans against
Il. NJ, Bunnell involves the question of
modifying a written agreement by pa
role. Bunnel had a promising gold
mine in New Hampshire. Winans had
some capital. An agreement was made
TO the effect that Winans should nav
the expense of developing the mine and
receive a one-half interest. The mine
was developed, but it proved to he de-
void Of paying dirt. Bunnell expended
$1,000 of Winans' money in the develop-
ing process Winans sued to recover
$1,000, alleging that they had agreed
verbally after the written agreement
had been signed that Winans' liability
should be limited to $500. The rest of
the l,500 was advanced with the
understanding that Bunnen would re,
fund it.
Bunnell denied the parole agreement
and contended that at all events the
written agreement could not be altered
by parol agreement. Winans in
answer to this held that he did not al
tempt to contradict, vary or alter the
terms of the written contract. He
'''' - W % ''''''N'"i bilol agree
ment, he averred, regulating a detail
of the performance of the terms of a
writing; he simply sought to limit tho
amount of the expenses,
A jury found in favor Of the defend
ant, and the Superior court amrms that
finding. John r, Edwards and c. Com.
eggs We're Mr., Winans attorneys.
The desire of the defendant to be re-
leased from contract for the pur
chase of $3.50 piano was responsible
for the case of Guernsey agains
Eroudp Frouda lives I'm NichoIson II,