1 Mass. App. Ct. 808

March 1, 1973

This action in contract was tried in the Municipal Court of the City of Boston. The trial judge found for the defendant. The judge made no rulings of law, nor was he requested to do so. A motion for a new trial based on the claim that the judge's finding was against the law and the evidence was denied. The plaintiff filed no requests for rulings of law in connection with the motion. The denial of the motion was reported to the Appellate Division, which dismissed the report. The case is before us by way of appeal from that dismissal, having been transferred to us under the provisions of G. L. c. 211, Section 4A, as amended, and G. L. c. 211A, Sections 10 and 12. The plaintiff argues that the judge erred in finding for the defendant and in denying its motion for a new trial. There was no error. A judge is not required to make rulings of law not called for by proper

Page 809

requests. Campanale v. General Ice Cream Corp. 314 Mass. 387 , 389. Requests for rulings are the only certain way to secure a separation of law from fact in cases tried without a jury. Brodeur v. Seymour, 315 Mass. 527 , 530. Without such a request, questions of law which might have been raised thereby are not open on appeal. See Burick v. Boston Elevated Railway, 293 Mass. 431 , 434. Questions of law which might have been raised at the trial cannot be raised as of right on a motion for a new trial. Haines Corp. v. Winthrop Square Cafe, Inc. 335 Mass. 152 , 154. The question whether a new trial should be granted was within the discretion of the judge. Bartley v. Phillips, 317 Mass. 35 , 41-42. No abuse of that discretion has been demonstrated.

Order dismissing report affirmed.