LAW REPORTS.

Dominion, Volume 3, Issue 769, 18 March 1910, Page 9

LAW REPORTS.

SUPREME COURT: IN BANCO. HOTEL BUILDING. THE SHORING UP OF A BANK. His Honour Mr. Justice Williams held a sitting in Banco yesterday. The case of A. J; Eand v: Allan Maguire was submitted by arbitrators, to determine certain legal points arising out of matters referred to them in respect of payment for part of the ' work connected with, the erection of the Commercial Hotel, Lambton Quay. The points submitted by tho arbitrators (Messrs. Mestayer, Bennett and Jones), were argued at considerable, length by the Hon. T. W. Hislop and Mr. Levi (for the contractor, Eand) and by Mr. C. P. Skerrett, K.C., with him Mr. H. H. Ostler (for tho owner of the property, Maguire).

Tho ; statement of the arbitrators showed that Rands had' contracted, in December, 1006, to build the Commercial Hotel for Maguire, and while the work was in. progress Mrs. Field, who owned part 'of the land on the bank at the. back of the site, obtained an., injunction to stop the work on the ground that certain excavations had caused or would cause damage to her property by slips. iJlrs. Field 'and' Maguire, however, came to an agreement in February, 1907, under which the work was allowed to proceed on condition that shoring should be erected according to instructions by Mr. Fitzgerald, and any dispute that might arise was to be referred to arbitrators., The contractor then went. On with the work, under a new contract, and erected the .shoring. Certain claims were made by Rands, and ,by' Maguire, and were submitted to arbitrators, who, in order to determine the'matters placed before them, desired judgment of the -Court, on. the following questions:—. (1) Whether -the contractor was-,.bound to inquire iiito; and ascertain for himself the boundaries between Mrs.. Field's and the owner's (Mr. Hagiiire's) land. ' (2). Whether, the plans or specifications contain any warranty, or anything imposing ,a -warranty or any kind of liability that the.face of the bank was composed'of sound and hard material. ,(3)' Whether the, contractor was. obliged under his contract .to ascertain the condition of the face contiguous to ' Mrs. • Field's t land; and to provide the'-nec.es-' . sary shoring to uphold the ground during the excavations,' and was liable; for all slips which occurred during the excavations. (4)- Whether the owner' .was responsible:-for any damages or compensation by . reason of any injury or ■ delay caused by the grant or coutinuanco of .the: injunction. (5) Whether, the owner was liable to pay as an extra for all the shoring ordered by the architect at the instance of Fitzgerald,. or only for ;so muokof it as the arbitrators deem to be more than was required to uphold the bank'.' (6) Whether the contractor was required to remove at his own cost all falls of earth from the face adjacent :to Mrs. ' Field's land, and whether,tho cost, of-all. work reasonably required for lightening the face and to prevent slips during; the work must be borne by the contractor. (7) Whether the owner is liable for damages or compensation by reason of the inefficiency (if . any) ■ of the shoring. . ordered' by Fitzgerald. (8) Whe- ,: -tljer: tlie:owner.is.liable for any damage 1 -or! compensation :.in,respect of. the delay. • $\i: any) .tbr'tlie; rest .'of the work, under. : ;the' contract, relating to the 'shoring: ' '■,{#) Whether, if tho act. of the contractor ' ~iii, excavating the face of Mr.. Field's ■ .land caused, it to become unstable' .and - ■was the real cause of tho 'subsidence-of the land, the-contractor is liable to indemnify tho owner against all damages properly added against him and law costs. : Si'-Having- heard-.argument oti both sides, ' -jus . Honour .reserved , his 'judgment.. ... ;*js.. || wnjils" Uiicaai- ','•-''-./''.':

Ai : ;COLLISItiN: IAPPEAL DISMISSED.. ~—JFlie; case of Jacob Geange (Mr.: Levi) y;? ; George iPinnock' (Mr.' D. M.'Findlay) involved aa appeal on fact and law from a decision of Dr. M'Arthur, S.M., at Wellington, who had given judgment on a counter-claim for damages resulting from a collision. ■• Plaintiff, who was defendant in the counter-claim, was driving a vehicle from Wellington to Upper Hutt.- At 'Silverstream Gbrgo his horse took fright and started off to the righthand •; side : -of .thot.- road, • and the. wheels, got stuck in tho water-table. He could not remove them with the appliances he had with him. Pinnock was motoring in this opposite direction, and a collision occurred. Damages were awarded., to Pinnock. by, tho magistrate on' tho ground .that Geange was guilty of negligence. The grounds of the appeal ■ were •■that there was not.sufficient evidence to prova negligence, and that- there was contributory, negligence oh the part of the driver ,of Pinnock's motor-cari

. After, hearing argument, his HonouT said, he-saw no treason -for disagreeing with.ths judgment: of: tho- magistrate/ There was abundant'evidence from which the magistrate could conclude that the driver of tho brake was guilty of negligence, and there was not such-evidence as to-make it reasonably clear that the accident could have been avoided by tho chauffeur. taking reasonable care. Tho appeal would be dismissed, .with costs i Kumeas.

The Banco sittings will bo continued this morning at 10.30; when the first case to be taken will be the Napier Harbour Board v. the Attorney-General. This case concerns', the manner ■. in which a poll is to be taken on March 21.