The opinion of the court was delivered, April 1st 1867, by
Woodward, C. J.— When an old building is renewed by considerable repairs, the much vexed question is pretty sure to arise whether it is “ an erection or construction,” within the meaning of the Mechanics’ Lien Law, and sometimes that has been said to be a question of law and sometimes of fact. Whichever it be regarded, of law or fact, or though it be, as perhaps most frequently it is, a mixed question, there is no more satisfactory, mode of deciding it than by referring it to a competent commissioner — a commissioner competent to deal with both questions of law and of fact, and questions also that are compounded of those two elements. Such was the course pursued here. The commissioner was on the spot to examine the building, and was attended by the parties and their counsel. His report exhibits a full consideration of the evidence, and a skilful application of the principles of law.
It was then reviewed in the court below, and the learned president of the court declared that after looking carefully through the evidence laid before the commissioner, his mind was brought to the same conclusion as that reached by the commissioner, to wit, that the work done on the building amounted to nothing more than alterations and repairs done to an old house, and that the filing and entering of these claims of the mechanics and material-men did not constitute liens, within the meaning of the Mechanics’ Lien Law.
If our own study of the evidence has led us to a different conclusion, it would be the dictate of common candor and common sense to distrust our conclusion, for we are not in so favorable *123circumstances to adjudge the point as the commissioner was. But in so far as it is our duty to pass upon the evidence, we see nothing to justify us in setting aside the judgment of the commissioner and of the court below, but are led to the same results they reached.
Without again discussing it, the decree is affirmed.