Warren v. Freeman

Opinion by

Mr. Justice McCollum:,

The contention of the plaintiff is that he has, by virtue of his claim filed on June 3, 1896, under the act of June 16, 1836, a valid lien on the building described therein. It is conceded that if the alterations and repairs upon it constitute a new structure he is entitled to judgment for the amount of his claim. The defendants, however, contend that his claim is not enforceable against the building because it represents work done and materials used in altering and repairing an old building, and not in the erection and construction of a new one. The claims grounded upon the erection and construction of a building must be filed under the act of 1836, and the claims based on alterations and repairs must be filed under the act of May 18,1887, and in strict conformity with its provisions. In the case in hand the claim is filed against a building described as a “ three-story brick building, consisting of front building of Pompeian brick, fronting Oxford street thirty-six feet six inches, and extending in depth twelve feet; main building three-story brick, thirty-six feet six inches in width and about thirty-six feet in depth, and gymnasium building two-story brick, thirty feet in width, and about sixty feet in depth.” The building described in the plaintiff’s claim is an enlargement of an old building which consisted of the main building referred to therein, and a three-story building in the rear of it, twenty feet in width and thirty feet in depth. The changes made in the old building which are claimed to have converted it into a new structure, were as follows: The second and third stories of the back building were taken down and the back wall of it was removed; the location of the east wall of it was not changed, but the west wall, in accordance with the plan devised for the enlargement of the building, was located on the west lino of the lot. The building as enlarged is twenty feet high, of the width of thirty feet, and of the depth of sixty feet. The only change in the main building aside from some alterations in the interior is the extension of it to the building line on Oxford street.

It is so well settled that a lien will not lie under the act of 1886 for alterations and repairs that a discussion of or extended reference to* the cases in which the subject is fully considered is unnecessary. It has been held, however, that where the structure of a building is so completely changed that in common parlance it may properly be called a new building or a rebuilding it comes within the act: Armstrong v. Ware, 20 Pa. 519; Patterson v. Frazier, 123 Pa. 419. “ Newness of structure in the main mass of the building — that entire change of external appearance which denotes a different building from that which gave place to it, though some parts of the old may have entered into it — is that which constitutes a new building, as distinguished from one altered : ” Miller v. Hershey, 59 Pa. 64. In Landis’s Appeal, 10 Pa. 379, it was held that where the front wall of a house was taken down and a new wall erected on a different foundation, and the inside of the house, excepting the floors, was altered and renewed, and a new roof was put on, and a new back building was erected, the claims for work and materials were not liens within the act.

In the case at bar the roof and the side and back walls of the main building remain unchanged, and the alterations made in the interior of it, together with the front extension of twelve feet, are insufficient to give to it the appearance of a new building. The same may be said of the enlargement of the back building. The evidence descriptive of the changes made in the old building, being uncontradicted, casts upon the trial judge the duty of determining whether the structure against which the claim was filed was an altered or a new one: Armstrong v. Ware, supra, Norris’s Appeal, 30 Pa. 122, and Patterson v. Frazier, supra. He held that the building as altered and enlarged was not a new structure, and that the claim filed against it was not a lien upon it within the act of 1836. He accordingly directed the jury to find a verdict for the defendants. In his conclusion respecting the building and in his direction to the jury we concur. The plaintiff was not entitled to a lien on the building under the act of 1836, and he made no effort to obtain one under the statutes which authorize liens for alterations, additions and repairs.

Judgment affirmed.