THEATRE CASE ENDS

Sun (Auckland), Volume II, Issue 498, 30 October 1928, Page 14

THEATRE CASE ENDS

NEGLIGENCE NOT PROVED PLAINTIFFS SEEK NON-SUIT The Delta Theatre case, which had occupied five full days, came to an abrupt termination in the Supreme Court yesterday, when, on the motion of their counsel, Mr. Justice Blair non-suited both plaintiffs. The action was one .n which Howard Oakley Browne (Mr. Leary) and George Vincent Mullenger (Mr. Finlay), lessee and owner of the theatre respectively, sought damages from the New Lynn Town Board (Mr. Northcroft) and William Stevenson and Hon, contractors (Mr. Lowrie and Mr. Inder). Plaintiffs alleged that a tunnel driven near the theatre caused the subsidence of a wall, resulting in the closing of the building since last May. His Honour had expressed the view yesterday morning that the weight of evidence disclosed no negligence on the part of the contractors. Mr. Finlay said that after his Honour’s somewhat definite expression of opinion he could only ask him to non-suit the plaintiff Mullenger in respect of his claim. He did not want Mullenger’s claim for compensation under the Public Works Act to be in any way jeopardised. Mr. Northcroft asked that the order should be made subject to the ordinary order for costs. Mr. Leary asked for non-suit for the plaintiff Browne, stating his position was similar to that of Mr. Finlay.

Considerable discussion followed on the question of costs, and his Honour reserved the matter for further argument next Saturday.