I dissent from the affirmance of so much of the judgment appealed from as awards to the plaintiff the sum of $42,065.35 for extra excavation claimed to have been necessitated by slides.
I concur in the view expressed by Chief Judge BARTLETT that the so-called expert testimony of the witness *Page 400 Hipkins, which was received for the purpose of sustaining this claim was incompetent. The mere circumstance that it may have been difficult for the plaintiff to present competent evidence to sustain this item did not authorize or justify the reception of incompetent evidence, and I think the evidence in question was clearly such. Further than this I am not able to adopt the view that this error was so inconsequential that it can be disregarded. While it is possible that there was slight evidence in the form of a very general admission by McDonald concerning this claim, I think that a consideration of the opinion and decision of the referee makes it very plain that the important and controlling testimony which led him to allow this item was the incompetent evidence in question, and if this is so the error ought not to be disregarded.
COLLIN, CUDDEBACK, SEABURY and POUND, JJ., concur with HOGAN, J., and WILLARD BARTLETT, Ch. J., concurs in memorandum; HISCOCK, J., dissents in memorandum from the affirmance of the award of $42,065.35 on account of excavations due to slides.
Judgment accordingly.