THE COURTS-TO-DAY

Evening Star, Issue 15343, 18 November 1913, Page 5

THE COURTS-TO-DAY

SUPREME COURT.-CIVIL SITTINGS. (Before- His Honor Mr Justice Williams.) SAMSON V. BARLING. James Martin Samson, auctioneer, v. Philip Barling, restaurant, proprietor.—This was a claim for the possession oE the Savoy Tea Rooms, in Samson's buildings, Dowling street. The plaintiff, in his statement of claim, set out: That bv an instrument dated the 27th October, 1911, the plaintiff leased the tea. rooms to the defendant and John Sutherland Sinclair for the term of 12 months from the 31st October, 1911. The defendant and Mr Sinclair were to have the right, after the expiration of three months from this date, on giving one month's notice, in writing, to terminate tho tenancy, and also the right, at the end of 12 months' tenancy, to bo granted a further tenancy for a further term of one, two, three, or four vears at a rental of £3 10s per week. That-prior to tho 31st October, 1912. Mr Sinclair assigned his interest in the lease to the defendant. That subsequent to the date of the said agreement the defendant obtained a further tenancy of the premises for a term of tne year from the 31st October, 1912. That 'the tenancy expired on the 31st October, 1912. That about the 29th September, 1913, notice was given by tho plaintiff to the defendant requiring him to deliver up possession of the premises on the 31st October, 1913. That the defendant was still'in possession of the premises and had wrongfully failed and refused to deliver up possession to the plaintiff, who now claimed to recover possession and £2OO as mesne profits from the 31st of October to tho date on which he recovered possession. Tho defondanl. in his statement of defence, denied that the tenancy under which he held the premises expired'on the 31st of October. He denied that any notice was given him, as alleged by the plaintiff, and also that he had wrongfully failed or refused to deliver up possession. Mr A. S. Adams appealed for the plaintiff, and Mr \Y". ("'. Mro-th-egor (with Mr .1. S. Sinclair) for tho defendant. Mr Adams, in opening the case, explained that the claim set out the, agreement between the parties. Then came the assignment by Mr Sinclair, solicitor, and tho further tenancy obtained by ihe. defendant iir terms of tho agreement which expired on the 31st of October, 1913. Then, on the 29th September of the same year, notico was given by the plaintiff to defendant to give up possession, and on the 31st of October iiotice was also given to the defendant that certain damage -would result if possession was not given on that date. Tho defendant, was still in possesion. Learned counsel then referred to tho statement of defence. There was a distinct statement in it that a new tenancy was created, and that was the basis of the defence. The onus was upon his learned friend of showing that a new agreement was made, and. failing that, the plaintiff would he entitled to judgment so far as the right of possession was concerned. Learned counsel supposed that there would have been no dispute but. for the. fact that these were rooms in which tea rooms had been carried on since the erection of Samson's buildings, and in Barling's first agreement of the tenancy thev were referred to as the Misses .Miller's 'tea rooms. Xow the defendant had arranged to take rooms in Haynes's new buildinc in Princes street. That building had taken longer to erect than was anticipated. Samson, in the meantime, was anxious not. to have the connection of his room., destroyed, and tho question was what was going to happen in the circumstances. Samson, in order to protect himself, goo together a staff on the. 31st_ of October, and that staff had been day to day to take possession and carry on the business. Evidence. Mas given bv Saul Solomon. K.C., W. Grant Way. and Janet. Murdoek (cook).

Mr MacGregor submitted that it -was clear that there v.-as mi existing tenancy. It was dear that that existing tenancy was not a tenancy m pursuance of the- o.'ijnnai agreement, but independent of it. There must havo been some tenancy agreed upon, and the only terms of tenancy which either party could'sponk to were the terms screed upon by Mr Hiking, K.C., aud Mr Hay, and which Mr Lemon of Messrs Hoskhig and Cook's office, said he communicated his acceptance of to Mr Hay some months after it. was made. It was very singular that in the correspondence there was" no repudiation of the alleged bargain. J. H. Hosking, K.C., was in the uitnessbox. when we went to press. MAGISTRATE'S COURT. (Before H. Y. Widdowson, Esq., S.M.) Judgment for plaintiffs was given by default in the following cases :—Mollisons Ltd (Mr Duncan) v. Edward Smith (Waihola), for cost 3 16s ; J. L. Mathews and Co. (Mr Stewart) v. Havelork Wilson (Port Chalmers), £4 12s 9d (costs 10s) for Roods; Mollisons Ltd (Mr Duncan) v. E. R. Horn (Ohakune), £3 2s 3d (costs 10s) for goods; H. F. Moss, Ltd. (Mr Duncan) v. Joseph Mathew Nolan (Timaru) £5 8s 3d (costs 23s 6d) for goods: A. and T. Burt, Ltd. v. Henrv 'F. Everett (Mataura), £4O Os 6d (costs £2 14s) for-ma-terial supplied; 11. F. Moss, Ltd. (Mr J. MacGregor) v. Mitchell and Ravner (Charleston).. £5 14s 5d (costs. 25s 6d), balance of sale. Joseph Hitchcox (Mr W. L. Moore) sued William Mintou for £2 6s on a judgment summons.—Defendant, who did not appear, was ordered to pay' forthwith; in default three days. A. Tapper and Co. (Mr Mooro for .Mr liny) sought to recover £ls 12s 4d from John J. I'eddington, on a judgment summons. No order was made. CITY POLICE COURT. (Before IT. Y. Widdowson, Esq., S.M.) Drunkenness.—Dibb Idour was fined 10s, in default 24 hours' imprisonment for the above offence. ' Alleged Theft.— William Kelly was charged with having, on the 16th ult,, broken and entered the Scotia Hotel, and with stealing; therefrom 7s in silver, the property of Florence Grostv; nn(] further that, on October 17, he' stole a bicycle valued at £'2 10s,' the property of Claude Irving.—Subinspector Fouhy applied for an adjournment.—Mr Hanlon, for the defence, offering; no objection. His Worship adjourned the case till Mondav. Bail ivas allowed to accused in his own recognisance of .£'•¥) mid two sureties of £2o each. (Before J. R. Bartholomew, Esq., S.M.) Maintenance.—An order for 30s per week against Neil Smith Turner for the maintenance of hi s wife and three children was increased to £"2 5s per week, as it was shown that defendant was m n position to pav mom than the amount originally- fixed.