Home JOHN MORGADO & others vs. ANNA S. MORGADO & others.

1 Mass. App. Ct. 810

March 7, 1973

If for no other reason, the bill was properly dismissed because of the inability of any of the plaintiffs to trace the moneys severally entrusted by them to their father into any of the bank accounts or the real estate standing in the name of the defendant Morgado. Attorney General v. Brigham, 142 Mass. 248, 250-251. Little v. Chadwick, 151 Mass. 109, 110-111. Lowe v. Jones, 192 Mass. 94, 101-103. Old Colony Trust Co. v. Puritan Motors Corp. 244 Mass. 259, 265. Cf. Hewitt v. Hayes, 205 Mass. 356, 362-363; Morin v. Kirkland, 226 Mass. 345, 348; Feeney v. Feeney, 335 Mass. 534, 537, 538.

Final decree affirmed.

Home HARRY E. PRINCE vs. SIDNEY CURTIS & another. [Note 1]

1 Mass. App. Ct. 810

March 14, 1973

This action of tort for libel is based on a series of articles attacking the plaintiff, a lawyer and a candidate for public office. Copies of the

Page 811

allegedly defamatory articles are attached to and incorporated by reference in the declaration. The plaintiff is accused of, among other things, refusing to pay real estate taxes to the city of Revere and of operating certain games at Revere Beach without licenses. The publications "related to the plaintiff's involvement in an event of public or general concern." Priestley v. Hastings & Sons Publishing Co. of Lynn, 360 Mass. 118, 123. The declaration alleges the publications to be malicious and their contents to be false, but it does not allege "that the defendant[s] either knew [they were] false or published [them] with reckless disregard of whether [they were] false," as required by Roketenetz v. Woburn Daily Times, Inc., ante, 156 decided this day. See New York Times Co. v. Sullivan, 376 U.S. 254, 280; Twohig v. Boston Herald-Traveler Corp. 362 Mass. 807, 808. As the demurrers must be sustained on this ground, we do not reach the question whether the publications were defamatory. Since, as in the Roketenetz case, the effect of the New York Times standard on the rules of pleading has not heretofore been considered by the Supreme Judicial Court or by this court, the plaintiff is given leave to file a motion to amend the declaration, which should be allowed if the proposed amendment is in conformity with this opinion and that in the Roketenetz case.

Orders sustaining demurrers affirmed.

Judgment for the defendants unless within sixty days after rescript a motion to amend the declaration in conformity with this opinion and that in the Roketenetz case has been allowed in the Superior Court.


[Note 1] Revere Journal, Inc.