OUT OF THE FRYING PAN

Taranaki Daily News, Volume LII, Issue 150, 21 July 1909, Page 3

OUT OF THE FRYING PAN

| BOILING FAX SHELL? fMW} °! t l h ° 3< ; P ecu " ar cases arisiuj- oIU , % tSsfiS 11 * I ®, . y annoyances was heard C ' •sfggF? Court yesterday I ? lll ' H " & F "*'»™crt, L partles were »ot only aeiehi. •* certa ' n extent competitors . 81Qess providing lor the 1 " inner mail." William -McAllum, proprietor of the ' Pa ' a «. sued Jolm Polygl„ ss a . 0 e ad J omill g Star Cafe for gSjSIO, for damages alleged to have 'been gpjued by the fumes from defendant's jßbobne operations preventing plaintiff receiving the full benc-nt oi uw X*:* & Wilson appeared ■ma the plawtifl, and Mr. A. It. Sundish jPf»r tho defendant. Sip' The plaintiff gave evidence that s»me- ? b .°" t last the defendant possession of premises ad- ( ,?|p om ">g th e Coffee Palace, and abuttin" i iS'On 'he rear thereof, and started busi- - Mfl eßs as a restaurant-keeper, witii nsli s. nippers during evenings. Almost im--i£; mediately the plaintiff began to notice most objectionable smelts which arose defendant's cooking oi.ei j. L . u „s * It®* 3 boarders, occasional lodgers and's«r- ---; Jirants complained about it. One of the /'gflrst complaints cam e from a lady and - wno had arrived by the eventing train. They were allotted k room •gin the iportion pf the building over the A of defendant's kitchen, audthev shown to it. Within hve - • returned to the office and refused i*t° occupy the rooms on account of the ißmeu of cooking. The housekeeper fol- ( j lowed them down and supported their statement that the stemch was unbear- ( , Bible. Next day witness interviewed the ■ - defendant about thematter. The odour , came from a sort of a gas cooker, „ un f< ' Receptacle containing some inches of fat I* . over the gas jet. This was S placed alongside a winuow right opposite I" ? . a ®L, on 'j a few feet away from a< s, plaintiffs ground floor windows, and Almost directly under some of the bed- . room windows on the first floor, 'mere was no flue to take off the fumes.. Defendant agreed to shift the coojter to the other side of tha kitchen, piawtiff , , bearing the cost. This was done, nuisance then cfeased, and there was 310 recurrence of, it until April, wliem he could see that the cooker had been placed in its old' position under hhe ■window. The stench recommenced,' It was abominable, and lie received numer- ' 011s complaints. Several boarders came to aim and asked rooms \in some other : portion of the house. The smell arilted .. i into the hall and thence upstairs, as . well as entered'by the lire escape door upstairs. He had never had any com- £ plaints before the defendant came, and n,, ' • was Q'u'e positive that the nuisance did :i e not arise from Jiis own kitchen. tt.

To Mr\ Standish: Defendant iuight have come in December. The account for shifting the cooker was paid by him ■' February. It amounted to about -l£lo. His fire escape projected over de- ■ fendant's property. He did not think J that had thfe effect ih increasing the fimell. He had had occasion to ask the borough inspector to go and inspect de: fendant's premises, on account of a heap ©f fish heads and refuse in his yard. The smell was terrible. -He had never had any dispute with the defendant. Phis actiqn Vas not brought with the wiew of "getting one back on to de- 4 fenflant" for erecting screens that had interfered with the lighting of his din-ing-room.

To # the Bench: The smell complained i of was the smell arising from the cooking.

-Re-examined: He had never received any complaint concerning his own kit- , chen or odours arising from it. v Augustus Cameron, a horse-owner liv-. • \ ing occasionally in New Plymouth, de- » poped that on one occasion the de-

fendant, in conversation, complained of McAllum's action in reporting him to the sanitary inspector, and said that . asHcAllum .had been so nasty he would shift the cooker back to where it was ibefore, and, " stink him/ out." He himi ( self had noticed the smell in the Coffee Palace, , ~ Cross-examined: Had not noticed any smell in the cafe, but in the Coffee r Palace it was "enough to knock you down." It was a smell ,of boiling fat. Tom Sutton, employed at the Coffee Palace, gave evidence that he had had numerous complaints 'from boajders > about the smell,, which had made him ■ .sick more than once. He had been there for eighteen months, and had never had * Bny complaints about the smell from the Coffee Palace kitchen.

Samuel W. Fennill, court bailiff, st»t : ' ed that when lie first came to New Ply- ■ mouth he boarded at the Coffee Palace, Bud noticed the smell frequently, particularly about the lavatory. It was a yery bad smell, spreading itself about the building,' aiid being undoubtedly detrimental to :the Coffee Palace business. Mr. Standish, in opening the defence, said he would prove that only utumary Aise was ' made' of this property, that ■restaurants ill New Plymouth were necessary, and that any smell which arose .was unavoidable in the reasonable conduct of defendant's business. It would nl«o be shown that the smclL was not ,as bad ah it was made out to be, and that defendant had' done all he couid to i pause aa little smell as possible.

The expressed the opinion that such a business might reasonably he expected to be conduated without this smell. Fish-frying in the ordinary way could not be offensive, but the odour from a pan of boiling fat cuuid lardly be otherwise.

/ The defendant gave evidence that the fat was not boiled more than was neces- I aary, and it was never burned. There i (was no objectionable smell from it. As i ..*■ £ matter of fact he had had the same < cooker in his previous ■ shop in Devon i .Street, and had done more trade than : now, although it was, in the same room ■with the customers. He had moved i (the cooker at plaintiff's request, but the corner in which he placed it was i too dark, and he had to bring it back " to the window. His premises nan been (regularly visited by'the inspector, who find on only one occasion found anything to complain about. The inspector was -always being'sent there. He denied having told yamerwi that he was going to shift the cooker back to " stink Mc- ¥ , [ilium out." There was just as much H smell from the Coffee Palace kitchen *'■ ; as from- Tim, and he was continually ' being annoyed by the smells of boiling 'f - cabbage, and ,80 On. f To ivlr. Wilson: He remembered plaintiff coming 'to him'and complaining that Jus girls were going to leave on acfucju j! tile smell. He said he would do induing to oblige, and had the V> cooker shifted at McAHum's expense. ■? fTh e sole reason for the erection of ' BCfeeus in front of McAllum'a windows was that'he wanted privacy—the Coffee Palace girls, were always looking in and * passing remarks. He could have puj. ■ the Screens a little away f/rom 1 Coffee Palace windows. MeAllum had ■ : ipffered to have his own windows frosted s «uL screwed down if he would remove the screens. His .kitchen.was so dark V where the cooking was done tnat one cook Jw'i to leave, *so he shifted the cooker bask to ttye window. It would he possible tu erect a flue to carry off the fumes. He admitted telling Cameron that he would shift the cooker back

because JlcAllum was annoying him. He

nntlerstood tliat the annoyance liad rev;'-',; TBSaniineds The inspector had in- " foruied him that he was sent by McAl--5 • Inn t'J inspect the premises. /■■ ■■ iltiftjn Evetts, until recently borongli '■■■: -tor, rtated that at HeAllnm's in'Tg. Ht&ee lie tad twice inspected Polglase's premises but only once found anything objectionable—-soiue stale and smelling 'oysteriC - He never smelt (Objectionable p;; fames. * «§£.. • Cross-examined: There was reason for ' McAllumV complaint about the yard, although' it was no fault of defendant. §sjjr4. He had. never <-been about the premises mi in the Coffee Palace at night. James Wood, bootmaker, leasing porBp; "• tion of the Coffee Palace buildings, said R lie experienced no inconvenience from K. the Star Cafe next door, j Sra Joseph Mennear, cook in defendants fffi;.'. employ, said it was compulsory for degjfiv.' * ieiidant to replace the cooker under tie window. There was no objectionable k' jM?' uracil. In fact, the smell was fattening. Xo 'ilr. Wilson: There was no smell *'s* whatever, He would not say that the K |v witnesses OH the other side were tell-; <Ving lie*, but they were wrong in saying as an objectionable smell. He §SU- had never even mentioned the case to SKr ; lus employer, or vice versa. The Magistrate decided to inspect the Jtfiimises. 'He, together with ,aaft the press, was given a practical JWWStWI&on of fish-cooking in fat, and <b!ie fnrxffss was explained. It was nofcV iiced that fo the corner where the cookfiThad been at McAllums request ■fesf WW A Ja'ge hoiid or flume to carry oil WMf \o hood had teen erected when vas moved, The "screens Kg Mentioned in evidence turned />nt to gj|£2r ftpd grooved hoardings pjaeed MK AyfS the fall extent of the Coffee tfaty* only a few inehtw from boundary between the two

that there was an abominable' imell from the kitchen and that it was detrimental to tile plaintiff's business. The plea for a better light was, he tliougnt, only an excuse, and, the cooker had been brought back to its original position purposely to annoy the plaintiff, 'i'lie nuisance was not caused in the reasonable and proper conduct of the .business of the defendant, who had acted unreasonably and vindictively. He would advise the defendant to remove the cooker and endeavor to live, amicably with his neighbors. Judgment would be for the full amount ot £lO claimed, to be reduced to £1 if the cooker is removed to plaintiff's satisfaction. Costs amounting to £2 7s were allowed.