Opinion by
In the year 1878, a building known as Casino Music Hah was erected by one Lauber on Broad street north of Columbia avenue, Philadelphia; afterwards, Francis Blackburn and James *312M. Hall, two of these defendants, became the owners of it, and they, on the 18th of June, 1886, leased it to Emil Baumblatt for a term of three years at an annual rental of $600 for the first year and $1,200 for each of the remaining two years. There is no covenant on part of lessee to build or improve. There is, however, this stipulation: “All improvements put upon said premises by the said lessee are to be left thereon upon the surrender of said premises, and are to become the property of the said lessor. But nothing herein contained is to be taken as rendering the said lessor of the said premises liable for such improvements or for such repairs.”
After being in possession nearly a year under his lease, Baumblatt employed Charles M. Hall, plaintiff, to do some work at the building, which was done, and Hall, not being paid therefor, he, on November 23, 1887, filed a mechanic’s lien in the sum of $90.00 against the owners, joining with them Baumblatt as contractor. The bill of particulars appended to the lien avers, that Baumblatt contracted with Hall, “ to partition off by a wooden partition, eleven feet by eleven feet four inches from one of the rooms in the building on the premises, two hundred and sixty feet northward from the north side of Columbia avenue, a space of the foregoing dimensions for office purposes.”
In his testimony, plaintiff says, that by a wooden partition eleven feet by eleven feet four inches he partitioned one of the rooms. The whole work was done by the plaintiff in one day.
There was no evidence to contradict or in any way change or modify the statements in the lien or those made by plaintiff on the witness stand. On these facts, the learned judge of the court below submitted the case to the jury in the following charge: “ If the work done by the plaintiff was a part of the original building, your verdict should be for the plaintiff. If however it was simply repairs or alterations or an addition to tie original building, your verdict should be for the defendant.”
The jury found for plaintiff and the owners appealed, assigning for error the submission to the jury to find a fact of which there was no evidence.
Was there any evidence from which the jury could find the work was part of the original structure ? In Miller v. Hershey, 59 Pa. 64, it is said: “ The idea which runs throughout all the cases is newness of structure in the main mass of the buildin*313g — that entire change of external appearance which denotes a different building from that which gave place to it, though into the composition of the new structure some of the old parts may have entered. This newness of structure must be in the exterior, the main plan of the building, and not in its interior arrangements.”
This work, it seems to us, lacked every mark of being part of the original structure, and whether viewed as a whole or in its particulars, was a trival alteration; the finding was not only without evidence, but was in the face of the plaintiff’s own evidence.
It was not alleged by plaintiff that he had brought himself within either of the acts authorizing a lien for alterations or repairs contracted for by a tenant with the consent of or notice to the owner.
The owners, for purpose of discharging the lien, paid the amount of it into court to await determination of the issue on sei. fa. This, it is argued, was an acknowledgment of plaintiff’s right of action. Whatever may have been the legal consequence of such payment in ancient pleading, no such effect as is claimed here is longer given it. As is said by Sharswood, J., in Elliot v. Ins. Co., 66 Pa. 22:
“ It waives the benefit of no defense, even if such defense be to the whole. It seems, therefore, that after payment of money into court, there may be nonsuit, a judgment as in case of a non-suit, a demurrer to evidence, or a plea of puis darrein continuance, in short, that the cause goes on substantially in the same manner as if the money had not been paid in at all; in other words, the defendant is not precluded by it from taking a defense which goes to the whole cause of action.”
The judgment is reversed.