Home AZURE E. OSBORNE & another vs. MAURICE BURKE.

1 Mass. App. Ct. 838

August 30, 1973

The plaintiffs appeal from decrees sustaining a demurrer to and dismissing their bill in equity seeking an accounting from the defendant, the second mortgagee of a parcel of land who was also the purchaser of the parcel at the foreclosure sale held under the first mortgage. Additional relief sought by the plaintiffs is to restrain further prosecution of supplementary process proceedings instituted by the defendant based on a judgment obtained by the latter against the plaintiffs for failure to pay the note secured by the second mortgage. They also seek to enjoin prosecution of another action at law brought in another court by the defendant against them on the aforesaid judgment. The plaintiffs do not allege or rely upon any irregularity or invalidity in the conduct of the first mortgage foreclosure sale. Their sole contention is that, since the defendant in reselling the property made a profit in an amount larger than the outstanding balance owed to him on the second mortgage note, he should have no right to collect on that note. This contention is without merit. As a result of the first mortgage foreclosure the second mortgage lien was extinguished but not the second mortgage debt. Purdie v. Roche, 304 Mass. 647 , 650 (1939). The defendant thereupon lost his security but was still entitled to payment by the makers of the mortgage note in satisfaction of their indebtedness to him. Purdie v. Roche, supra, and cases cited. The plaintiffs have set forth no cause of action.

Interlocutory and final decrees affirmed.

Home ANNA KINGSLEY vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

1 Mass. App. Ct. 838

August 31, 1973

This is an action of tort to recover damages for injuries sustained by the plaintiff in an accident which occurred on the defendant's premises. The case is before us on the plaintiff's exceptions to rulings of the trial judge on certain evidentiary issues and to his ruling directing verdicts for the defendant on all three counts of the plaintiff's declaration. The only argument briefed by the plaintiff is the court's ruling directing the verdicts, and this is all that we will now consider. Boston v. Dolan, 298 Mass. 346 , 355-356 (1937). Lawson v. Shine, ante, 814 (1973). It is well-settled "that a verdict will not be directed for a party unless the evidence when construed most favorably to the opposite party would not warrant a contrary verdict, or unless evidence by which such opposite party is bound would make impossible a verdict in his

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favor." Salem Trust Co. v. Deery, 289 Mass. 431 , 433 (1935). Grant v. Carlisle, 328 Mass. 25 , 28 (1951). In the instant case it could have been found that the plaintiff ascended the right-hand side of a set of stairs which led to the Park Square MBTA exit opening on the Boston Common. She reached the top of the stairs, looked, but did not see signs indicating exit or entrance, and then proceeded to push a swinging door. The door had opened approximately one-half inch when two girls pushed the door inward. The door struck the plaintiff causing her to fall down and sustain injuries. The area was well-illuminated. The door had a three inch glass panel, but the plaintiff did not look to see if anyone was coming. There was no evidence that anything was in disrepair. Further, there was no evidence of improper construction or deviation from the originally approved design plans nor was there anything to show that they were not entirely safe when properly used by persons passing through them. Smith v. Johnson, 219 Mass. 142 (1914). Callaghan v. R. H. White Co. 303 Mass. 413 , 415 (1939). Since the conditions were open and obvious to an ordinarily intelligent person, there was no duty to warn that the doors might open inward. Callaghan v. R. H. White Co. supra. Considering the evidence in light of the plaintiff's declaration, we discover no breach of duty owed to the plaintiff and thus conclude that the trial judge's ruling was correct.

Exceptions overruled.