29 Pa. Super. 488 | Pa. Super. Ct. | 1905
Opinion by
This is a scire facias upon a mechanic’s lien. The lien described the building against which it was filed as a two-story brick factory building, “ situate on the east side of Palm street, and extending northwardly and southwardly from the north side of Brown street to the south side of Parrish street and eastwardly and westwardly from the east side of Palm street to the west side of Kessler street and its continuation where it •runs into Ninth street, containing in front or breadth on the south side of Parrish street one hundred feet, and on the north side of Brown street one hundred feet, seven-eighths of an inch, and on the west side of Kessler street, and its continuation where it runs into Ninth street, three hundred sixty-seven feet eight and one-quarter inches.” The defendant filed an affidavit of defense averring that the work was not done in and about the erection of a new or original structure, but merely the alteration and repair of an old building; and that the claimant had not served the written notice upon which his rignt to file a lien for work of this character was dependent.
It was, at the trial in the court below, “ agreed between counsel that the work was done by Thomas Porter, who furnished the labor and materials as set forth in the lien, that the notices required by the act of assembly, if this be a new erection, were given, but if it was merely an'alteration and repair of an old building, the notices required by the act were not given, and that the question here is simply whether or not.this
The plaintiff produced evidence as to the character of the old building, the extent and details of the new work and its relation to those parts of the old building which remained unchanged, and the effect of the work upon the building as a whole. The defendant offered no testimony; there was no dispute as to the facts, nor could conflicting inferences be drawn from them. The factory, or chemical works, of the defendant occupied the entire block bounded by Brown, Palm, Parrish and Kessler and Ninth streets, there was in the middle an open court to which access was had through a gateway. The operation in which the claimant did the work for which he now asserts the right of lien consisted of tearing down a'section of the building on the Ninth street side and rebuilding it upon the same lines. The east front of the building, along Kessler and Ninth streets, was 367 feet substantially as stated in the lien, and for a large part of that distance was two stories in height, but it did not, as incorrectly stated in the lien, continue of the same height throughout the entire distance, a part next to Parrish street being three stories high. There were windows in the wall of this eastern side, but no openings for entrance to the building, to the various parts of which access was had from the courtyard. The roof over this entire two-story part of the building was continuous and under that roof no division was extended from the ground to the roof. The only manner in which one part of this two-story building was divided from another was by cross-walls, which extended up one story to the joist or tiebeams, upon which some boards were laid but not so closely that they could be called a floor, above this up to the roof the entire two-story building was open through from end to end. One of the rooms into which the building was thus divided was used for the manufacture of acid, which in time so affected the mortar in the walls that they became weakened and unsafe, and to remedy this condition the work in question was undertaken. Fifty-six feet of the wall of the two-story building on the side next Ninth street and the foundation under it were removed, a corresponding section of the parallel wall twenty-five feet to the westward, along the interior courtyard, was torn down to the top of the founda*
When the facts are ascertained or undisputed, it is for the court to determine what does or does not constitute new buildings : Norris’s Appeal, 30 Pa. 122; Patterson v. Frazier, 123 Pa. 414; Mehl v. Fisher, 13 Pa. Superior Ct. 330 ; Caldwell v. Keating, 18 Pa. Superior Ct. 297. Had the room in which this manufacture of acid was carried on been situated in a detached building and the walls had become so weakened that it had been necessary to rebuild them and put on a new roof, there could have been no question that the operation was a new erection. That however is not this case; the parts of the roof and walls removed and replaced with new work were structurally incorporated with a much larger building, of which the room in question was a mere fraction. The plaintiff recognized this fact and filed his lien against the building ás a whole, and
The judgment is reversed.