The daily gazette., 1879-05-23
FIFTH EDITION,
Fhe County Courts.
THIS MORNINGS PROCEEDINGS.
THE MAJARIrY DAMAGE CASE STILL
ft.. UNDER WAY.
Especially Reported for the Gazette.1

Nff.. UNDER Way
Especially Reported for the Gazette.1
~ ,. NEW CASTLE, May 23.
court opened at 1V o'clock, this
morning, Judges Comegys, Woo..en and
Houston on the berch
Attorney-General Pennington called
the attention of the Court to the fact
that Stephen Byard, COL, who pleaded
guilty several days ago to the larceny
of money from David Byard COL, had
not yet been sentenced. The Court Or
dered the Sheriff to bring the. prisoner
into Court just before adjournment, to
receive his sentence.
The Patrick Magsrity damage case
was then resumed, with Mr.. VIM. II.
Quinn ON the stand, who testified that
the work on the Monroe street sewer,
the inlets and the changing of the ele-
va1on Of the streets was done by the di-
rection of, and by persons employed by
the City Council Of Wilmington.
City Auditor G. B. Underwood testifi-
ed that in the Spring of 1915, while a
member of the City Council; he visited
ed the house Of Mr.. Magarity, at the lat
ter's request, and examined the cellar.
Found water there five or six inches deep
with marks OH the wall showing that the
water had been two feet deep.
Eamund b. Frazer, Clerk of the, City
Council, was the next witness. He was
shown some papers, which he identified
as, the petitions of Patrick Magarity 70
the City Council, in relation to the dam
age to his property. The petitions had
on them the reports Of the committees to
which they were referred, and the plain
tiff offered them in evidence.
The defence objected il they were to
be received. as proof that the state of az
fairs complained of really existed.
The Court ruled that they could only
be accepted as proof of the fact that COM
plant had been made to Council, and of
the nature of the complaint, which must
be followed up by proof that the facts
complained of really existed. u
| Plaintiffs counsel said that was the
only manner in which they desired to
have them accepted, and the defense
withdrew their objections. ~
Philip Plunkett testified that once
within the past three years he went to
Patrick Magarrity's coal yard to buy
some coal, but the coal was in such a
dirty and filthy condition that he would
not buy any.
Miss Mary j. Magarity testified that
her father commenced business at his
present location in August, 1865; he had
the lot filed up about five feet, except
where the house was built; which was
higher ground: The house was built in
1869, and the Monroe street sewer was
commenced in 1871. There are two GEL
lars under the house; the walls rough
coated, and the whole cellar whitewash
ed; the whirewash dried readily; never
had any trouble with the cellar until the
construction Of the Monroe street sewer
the water began to come into the cellar
as soon as 1t was turned into the sewer
father dug around the foundations
of the house, and found that the water
aud no other; the deeper he dug on the
Monroe street side the more forcibly the
water came up from the grouno; just a
the water rose and fell in the sewer, 81
1t rose and fell in the cellar; the celia
has been practically unfit tor use eve
since; in 1873 or 1874 father filed up tn
front cellar about two feet, but the waite
came up above this, until the city pu
the pipe in, which would carry 1t off; af
ter the street was filed up in mont O
the house, the surface water would flow
down over the pavement and into
the cellar on account of the insult
ficiency of the sewer inlets; thi,
would happen on an average abou
once month; the water would ale
back up into the coal yard, about I'VE Of
six times year; from 1871 to 1873; there
were always frem 125 to 25O tons Of Goa
in the yard; if the freshet was heavy, the
water would raise from two to three fee,
in the bin on an average about one
fifth of the coal would be flooded; par
of this coal could not be sold at all, anC
b rest of 1t had to be sold at a reduc
ton of from 30 to 20 cents per ton.
Witness further testified that she be
gan to notice the cracks in the hous,
during April, 1876; the doors and win
dows st tiled, aud had to be thorough.
, repaired; the plastering also cracked
and had to be renewed; the house wa
rendered damp and uncomfortable; fl
summer the walls would be wet, and Il
winter covered with frozen vapor; artiC
les hung up in closets would easlly be
come mildewed; the house was not dam
or unhealthy PRIOR to the building of tn
Monroe street sewer.
Witness was cross examined for tn
defence, but her direct and positive tssti
mony was not impaired or altered In th
slightest degree.
The case OF the plaintiff was her
rested, and Mr.. Macallister opened fo
the defence. He SAID tho defence woul
show that tho water complained Of di
! not come from the sewer at all, but froI
the streets. That the sewer was proper
ly constructed and did not leak; that tn
Oity had repeatedly attempted TO Civ
the plaintiff relief, but he refused 1t; ths
the whole trouble came from the wate
which flowed along Maryland Avenu
, and Chestnut streets, the sewer inlet
not being large enough 10 receive 1t al
The defence first offered in evidenc
the minutes of City Council from 1869
the present time, to show the diffe-er
actions taken by Council in relation |
3 the construction of the Monroe sire,
= sc wer, and t0 the compliant Of Mr.. Nj
: garity.
The first witness was Levi Il. Spring,
n who testified that on Sept. 11ih, 1871,
was appointed by the Street Committt
OF City Council to superintend the col
strucion of the M onrOo street sewer;
supposed the sewer was constructed In
good, Workmanlike manner; IL was doI
In accordance with the plan apLrave
. BY the city authorities; did not he
of any trouble with the sewer
the time it was being built,
rega;d to its imperfect como
ton below Front street; never tested I
examined the sewer, after Its constru
= ton, to see whether 1t leaked or not.
w itness said that previous to the co
J. struction of the sewer he had seen wat
in M agarity's 3 coal yard. He had new
s. seen the plans of the sewer while Il
; work was In progress, and he did not I