DISTRICT COURT.—Friday.

New Zealand Herald, Volume IV, Issue 1125, 22 June 1867, Page 5

DISTRICT COURT.—Friday.

(Before His Honor Judge Beckham - ) An adjourned sitting of tliis Court was lield yesterday when the following case was resumed : — DTTNLOP V. GALIAUGHEB AND OTHEBS. THE ONEHUXGA RAILWAY. This was a claim for £100 for certain cuttings done by the plaintiff on the Onehunga Branch line of the Auckland and Drury Kailway. The evidence of the plaintiff and his brother had been -heard at the last fortnightly sitting of the Court when the case was adjourned. Mr. Beveridge and Mr. Hesketh appeared for the plaintiff; Mr. Brookfield for the defendants. All witnesses were ordered out of Court. At the opening of the case, Mr. Brookfield produced a copy of the agreement made between the parties, and which liejhad received notice to produce at the last sitting of the Court, but had declined to do so. He tendered the copy stating that it differed in its contents from the description given in evidence by plaintiff. Mr. Beveridge objeeted to the production of the document, and argued that it could not be put in at this stage. Mr. Beveridge then called John Brown, who deposed that the defendants performed the carting the earth, being cut and filled in by the plaintiff. Plaintiff was ordered by the defendants and their engineer to widen and deepen the cuttings. Had heard Gallaugher tell the plaintiff that he would be paid to the utmost farthing for these works. Dunlop said on one occasion to defendant and his engineer, " For heaven's sake gentlemen, give me the proper dimensions or it will ruin me." Defendant had admitted that the levels were wrong. The witness was cross-examined by Mr. Brookfield, but nothing material was elicited. P. J. Dalton, examined by Mr. Beveridge, deposed that he had examined the works performed by the plaintiffs, at their own request. Had requested the defendant, Gallaugher, to point oat the work so that a correct measurement could be made, but defendant refused, saying he was quite sure the plaintiff would not point out anything he had not done. Dunlop pointed out the work. Witness had been engaged on 27 different railways, and had been 20yearsengaged in the profession. Measured the work pointed out by Dunlop, amounting to 2922 cubic yards of cutting and excavation (document produced) • The work fell under this agreement. James Stewart, engineer, was called to produce the working plans and cross sections. Mr. Brookfield objected to the last witness being allowed to leave the Court after having been sworn. His Honor overruled the objection. P. J. Dalton, re-examined, deposed : The plan produced does not show the level of the line as it at present exists, neither does it show all the cuttings. The other plan produced is the same as the first mentioned, showing original working section, and also the present level of the line. The plan was made by my brother. Mr. Brookfield objected to the production of the plan. Be-examined: The plan is correct; my brother has the notes. I was not present when they were taken. George Harker deposed that he was an articled clerk to Messrs. Daltons. Had accompanied the last witness to Onehunga, for the purpose of measuring the work performed by the plaintiff. Gallaugher said, " Dunlop knows the cuttings as well as me. I have nobody to send, and I cannot go myself." Found the works to contain 2922 yards. W. J. Dalton, deposed that he had had great experience in railways, and had been resident engineer on two lines. In September, 186 C, had measured the work performed by the plaintiff. Applied at Mr. Cheeseman's office for the working plans of the Onehunga branch line, but could not g2t them, because the work was not executed according to the working drawings. Gallaugher said, when witness went to measure the work : that he would be satisfied with Stewart's measurement. Measured the work which fell under the agreement, and which contained 2,910 yards. (Longitudinal plan produced). This plan shows the present state of the line compared with the original longitudinal section. Cross-examined: This is the original plan from my own notes. Re-examined : The deviation from the original plan has caused from 800 to 1,000 yards difference in the cuttings. The same work was pointed out to my brother as to me. Cross-examined : I took the level as it stood. (The witness described the respective widths of the cuttings.) My plan is made upon the mean average of measurements taken at regular distances. I have taken no mean width of the permanent formation line. Mr. Brookfield insisted on the minutely witness calculating the deviation in each particular cutting. "Witness: It would take me a day and a-half. Mr. Brookfield: Never mind. I want the deviation in each particular cutting. Cross-examination continued : The deviation in No. lis 138 yards. I cannot tell the deviation in cuttings Nos. 2 and 3 without calculation. To His Honor: The detail of the calculation would involve an immense deal of trouble. His Honor said he thought the general deviation of 800 yards deposed to by the witness Was sufficient. Mr. Brookfield said the deviation in each particular case was required. Mr. Beveridge said his learned friend might as well ask a carpenter how many nails were in a building.

Cross-examination continued : The 800 yards refers to the whole line, and not to a particular line. A.t this stage a paper containing the witness's original calculations was handed into Court, and Mr. Beveridgo was about to put it in evidence. Mr. Brookfield refused to allow them to be put in. The Court adjourned for half-an-hour. John Vercoe, sworn : I am a Civil Engineer residing in Auckland. I have examined tho work on the railway which the Duulops pointed out to me as theirs ; it was on the 13th of last February. Dunlop was with mo, his assistant, and Mr. Peter Dalton. The cutting measured 2,927 yards. (Agreement produced.) The work I measured fell under this agreement. I did not measure that, because Dunlop told me he had measured it himself. (Plnn of cross-section produced.) I would not call this a plan of cross-sections. It is not possible to get quantities from this plan. I measured the cuttings in the usual way. I took the average heights, the lengths, and widths, and made my calculations. I would not consider it necessary after that course to follow tables. I consider the practice I adopted on that occasion, as far as I am individually concerned, the best. Cross-examined by Mr. Broolcficld : I cannot say now what the average width was : as near as I can recollect the slope I allowed was 1 to 1 and 1 and ,V to 1. The width of the formation line was 15 feet, and in others 18 feet. I measured tho work as I found it. This closed tho plaintiff's ease. For tho defence, Mr. Brookfield called, James Gallaugher, who deposed : I am a contractor carrying on business in Onehunga. I had a contract with Dunlop in writing (contract produced.) Mr. Beveridgo objected to its production, and quoted from " Taylor on Contracts" in support of the objection, and also from " Cavington and Payne " and from " Adolphus and Ellis' Reports." His Worship overruled the objection, and allowed the document to be put in. Examination continued : This is not a correct copy. I had a contract with Dunlop for excavation and formation. Before signing tho contract I explained to him the specifications, and shewed him the working plans. I told him whatever measurement I got from the engineers he would get the same. He seemed satisfied. I constantly showed him the plans and specifications. Whenever the pegs were not put down for the cuttings I took the tape and put them down for him. I was present when the engineers measured the work after he finished it up. I have been paid for 22<14 yards, for which plaintiff has been paid at the rate of 3s, a yard. I told him he was to be paid according to the engineer's measurement. I never told him that he would be paid any other way. The work was finished In July or August. In some places he had excavated too much, and had to fill it up again. I recollect the time when Mr. Dalton went over the work. The line was not then in the same State as when Dunlop left. I had taken away over 1000 yards of earthwork for filling up the swamp. That earth was taken from both sides of the cutting. Cross-examined by Mr. Beveridge: The specification was entered into a public house in Onehunga. I carried the working plans with mo every working day. There were no cross-sections on the plan. I could have done without them. I worked by the specifications. I had only one working plan, and by it was able to consiruct the line. I will not swear that these men did not excavate more than 224-1 yards. I will only swear to the quantity I paid for. Three times he had to alter his cuttings by the engineer's orders. No. 8 cutting had to be filled up 8 inches. No. 7 cutting had to be cut out some inches. He was never ordered to make a certain cutting deeper, and then fill it up. After the witness had been re-examined on some minor points, the case was adjourned until Friday next. The Court adjourned at a quarter after 4 o'clock.