SUPREME COURT

Dominion, Volume 9, Issue 2812, 1 July 1916, Page 14

SUPREME COURT

ALLEGED BREWERY NUISANCE DAMAGES, £50, ALLOWED. His Honour Mr. Justice Hosking delivered judgment yesterday in the case of a claim for .£'sol by Mrs. Sarah Bootes, boardinghouse-keeper, against Staples and Co., Ltd., brewers, both of Wellington, for damages for an alleged nuisance, said to have arisen by noise and vibration of machinery mid noxious, smells from defendants' breivery. in Murphy Street, plaintiff's house being contiguous to the brewery. ■ In the course of his judgment Mr. Justice Hosking, after reviewing the circumstances, already reported in The Dominion" of May 2G last, said that in his opinion nothing was established in the way of business on the part of the defendants by which the plaintiff could.be held to D 9 deprived of her right to enjoy 'the occupation of her dwelling-house free from material discomfort amounting to a nuisance caused by the operations of the defendants, who relied upon their agreement with the owner (Mrs. Stevenson) of the property occupied by Jlrs. Bootes lo exonerate'tliem from all damages for trespass or nuisance of any kind.- Under this-deed Staples and C'o. paid Mrs. Stevenson .£6OO. But Mrs. Bootes was a tenant at the date of the deed,-and'His Honour failed. ,to see how a tenant in- possession under an existing tenancy, ; and ho party to the deed, could have her or his rights affected thereby without his or lier consent, or -unless there had been a determination of the (enancy and a reletting subject to the deed.' The plaintiff's rights, whatever they were, stood'unaffected; and if a nuisance was created by noise; vibration, or smell, what damages should bo awarded. His Honour came to the conclusion that under her tenancy. rights plaintiff was entitled to 'some consideration, but to assess the damages -was a. difficult matter. The sura of .£5Ol, as claimed, was out of al| reason. He thought .£SO would be adequate compensation for-everything, with costs as per scale, witnesses' expenses,'; and disbursements to be fixed by the Begistrar. Judgment to that effect: was entered up for plaintiff, and .£3 3s. was allowed for the second day.' At the hearing,' v Mr. T. M .Wilford appeared for plaintiff,' and Mr. A. W. Blair for defendants. SETTING ASIDE A TRUST DEED THE CASE DISMISSED. . , Yesterday His Honour' Mr.' Justice Hosking delivered judgment in a'recent-ly-heaid case.in whichf the plaintiff applied to the Supreme i Court to compel the Public Trustee to relinquish a trust. The plaintiff Was the daughter of. a retired farmer at Eketahuna, and she sefr aside a legacy from her grandfather so that she. could use the interest herself, and that the capital would be kept intact for her child. Under this deed the Public Trustee was appointed administrator. Her Teasons lor asking that the deed be set aside, that she was not satisfied with the administration, .were not convincing to His Honour, for the deed • had been fully and carefully explained to her by the solicitor, Mr. Page, so Mr. Justice Hosking dismissed the action, adding that the Public Trustee was, entitled to take costs, charges, and expenses out of the trust eslate, costs of the plaintiff to b9 dealt-with on application. [It was.His Honour's request that the plaintiff's..name'l'o'r family, reasons should bo omitted;frompublication."! A LICENSING CASE LIABILITY OF A..LICENSEE.. , , Yesterday Mr. Justice Hosking heard 6 -''caso:ri!i appeal from this : Magistrate's Court,- affecting the 'responsibility, of thelicense holder of an hotel for the action of' his or her servant in. selling aud Serving drinks in hours proscribed by the Licensing Act, 1008. The .case was a Wellington one.- The information . before' the Magistrate, Mr. Di G. A.-.Cooper, S.M., and a.Justice of the Peace,: allegedltliat,.Lucia Mercer,, be.ing-the licensee at the--time of';,the Metropolitan Hotel,'did sell-liquor' to one Cyril Essex Ila'rvey, on Sunday, December l'J, 1915. The liquor, was served by a barman to a constable'in plain clothes, who subsequently became the informant. The Magistrate held that as. the defendant was on the. premises, 'and in charge thereof at the time, the defendant could not in law be held responsible for. the act of her ;servant, committed without her knowledge and without her content; and he dismissed the information.

Tho question Mr. Justice Hosking had to decide was 'whether the Magistrate's decision was erroneous in point, of law.

After hearing argument, by Mr. V.-TC. Meredith, who appeared for the Crown, and Mr. 11. T. O'Leary, who pleaded for the: respondent, His Honour- . reserved judgment.