Source:Declared-void/content
Asking that the ordinances of July 18 vacating portions of Forty-ninth and Valley streets be declared void, a suit in equity against the city of Pittsburg, Adolph Edlis, city treasurer, the H. K. Porter Co., the McConway & Torley Co., and George W. McCandless was filed yesterday in Common Pleas Court No. 2 by Malachy O'Donnell. The plaintiff is the owner of property in the Ninth ward, fronting 50 feet on the corner of Harrison and Forty-ninth streets, and extending back 100 feet along Forty-ninth street to Plum alley.
The bill charges that some of the important statements in the petition upon which the vacation ordinances are based were false. It asks that the H. K. Porter Co. be restrained by preliminary injunction from closing or obstructing Forty-ninth street, between Harrison street and the Allegheny Valley railroad, and restrained from recording in the recorder's office for Allegheny county a certified copy of the ordinance vacating the street; that the H. K. Porter Co. and the McConway & Torley Co. be restrained from closing Valley street or obstructing it between Forty-eighth and Forty-ninth streets, and from recording a copy of the ordinance vacating that portion of Valley street; that Adolph Edlis be restrained from receiving from the defendant companies, or any other property owners on Valley or Forty-ninth streets, any moneys authorized by the ordinances; that the defendant companies be restrained from interfering with the swers [sic] under these streets or from building over or around the sewer, or making any excavation near the sewer, upon these streets.
It is asserted in the bill that the ordinance vacating Forty-ninth street is based upon an alleged petition of a majority of the property owners in interest and number, abutting on Forty-ninth street; that some statements in the petition are false, and that the passage of the ordinance for the vacation was a fraud upon the city of Pittsburg and its citizens. It avers that neither the McConway & Torley Co., nor George W. McCandless, who made affidavit to the petition, were owners of property fronting or abutting on the street between the points mentioned therein, on May 14, the date of the petition, and that the affidavit of McCandless that he was owner of property on the street, between said points, was false and untrue. Similar allegations are made in the case of the Valley street ordinance.
SEWER IS NECESSARY.
Further allegations are made that the ordinances are void, illegal and "ultra Vires" for the reasons that they contain more than one subject; the subject matter is not clearly embraced in the title; the oridnances [sic] are attempts to delegate to the owners of property abutting on said streets the power to make the ordinances valid or invalid; the city of Pittsburg has no statutory or inherent authority to make the validity of an ordinance vacating a street depend upon the payment of a sum of money by a private person to the city treasurer for its use; the ordinance impairs the obligation of a contract so far as it vacates the southerly 20 feet of Forty-ninth street, the same having been dedicated by the owner as a street forever; and that the ordinance is founded upon a petition not verified by the affidavit of one or more of the abutting property owners on the streets, between the points to be vacated.
The city has built and maintains at great expense, it asserts, a sewer beneath Forty-ninth street and across Valley street to the Allegheny river, and this sewer is absolutely necesasry as a means of drainage for the properties in that section. It is also alleged that there is no "Plan of the Borough of Lawrenceville," as stated in the ordinance, and that for this reason, among others, the bills are faulty.
O'Donnell claims his lot is in the plan laid out by George A. Bayard and was conveyed with a grant from Bayard, of May 17, 1852, which dedicates the streets in the plan to be enjoyed as streets and alleys forever.
The plaintiff's property, he says, is now leased as a coal yard and has a special value for that purpose because of its nearness to the railroad siding in Valley street, at the foot of Forty-ninth street. He brings the suit as a citizen and taxpayer and in the behalf of himself and any others who might wish to join in it.
M'NULTY ESTATE OPINION.
An opinion was handed down yesterday by Judge J. J. Miller in Orphans' Court on the exceptions which had been filed against the court'e [sic] decree in the Peter J. McNulty estate. The court holds that the assumption of the liability by Stair & Havlin for the Hyde & Behman and the Davis contracts was an advantage of the McNulty estate and to the partnership of McNulty and Gulick, possibly to the extent of $65,000. This was not fully taken into account at the audit, but is sufficient under all the circumstances to justify additional allowances to S. E. Kingsley for $2,000. Proof establishes the fact that 150 shares of capital stock of the Washington Tinplate Co., pledged as collatedal [sic] security for loans held and presented by the United States National Bank, are the property of John J. O'Connor. These were given by him to McNulty for the purpose of security of this credit and upon the payment of the debt for which the stock is held for security it should be returned to the owner.
While no exceptino is filed to the designation of $38,961.54 of the claims of the United States National Bank as partnership claims, yet if there were such claims they should not have been allowed to participate, as examination shows they were indorsed by McNulty; therefore, whether they were original partnership claims or not, the indorsement makes an individual liability and must be so considered. The exception to the allowance of the claim of Hyde & Behman, even though payment of 10 per cent is suspended pending an adjudication in the Common Pleas Court, it is well taken; as a partnership claim, it has no place in this distribution and allowance must be refused.
Manifestly the retention of the large balance in the accountant's hands, the opinion says, is not in the line of prompt and wise administration.
Jeremiah Welsh, deceased, of Pittsburg, disposes of an esctate [sic] valued at $115,000 by her will. The property consists of $100,000 personalty and $15,000 worth of real estate situated at No. 129 Stratford avenue. Mrs. Anna Ella McKee, a daughter is to have the house and lot on Stratford avenue, together with furniture. Each of the three children of Mrs. Welsh's deceased son, Harvey Welsh, is to receive $5,000. Of the residue of the estate, George Welsh, a son of the testatrix, and Mrs. Anna Ella McKee, a daughter, are to receive one-third each. The remaining third goes to the Dollar Savings Fund & Trust Co., of the North Side, to be held in trust for another son, Benjamin Franklin, with instructions to invest the money and pay him the interest. Upon his death his share is to go to the other children or the survivor of them.
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Court Notes
Suit was entered against the Supreme Council of the Royal Arcanum by Doratha Kaufman, alias Dorothea Grisela Kaufman, in which she asks $2,000, together with interest from September 2, 1906. It is alleged that her husband became a member of the organization, joining the Orion lodge, No. 9, taking a policy for $2,000, payable to his wife. He died September 22, 1906, and it is alleged that the defendants have refused to pay her the amount of the policy.
The question of how much compensation a doctor can collect for performing an operation may have to be decided by the courts. William M. Beach, who says he is a specialist with 20 years' practice as a doctor, has entered suit in Common Pleas Court No. 4 against J. W. Cheswright, a druggist, in which he claims $500 for performing an operation on the defendant, giving advice and attending after the operation, which was performed at the Presbyterian Hospital, last February. Dr. Beach claims his services were reasonably worth $500. Cheswright says $100 is a reasonable compensation and offers to confess judgment for this amount.
In compliance with the order of the Superior Court, the $10,000 bond which was required of Charles Stewart, the former Select councilman, who has taken an appeal from the sentence of paying a fine of $500 and costs and serve eight months in the county jail which was imposed upon him by Judge Robert S. Frazer, has been given, and he will enjoy his freedom until his case is finally disposed of by the higher court.
Although the heir to an estate valued at $150,000, James Devlin, a city fireman, is still confined in the county jail unable to furnish $300 bail, to guarantee the payment of $10 a week for the support of his wife. He may be in jail for 10 days, as it will require this length of time before proofs of the estate can be secured from Halifax, N. S., where the estate is located.
