10 Mass. App. Ct. 842

July 21, 1980

The Alcoholic Beverages Control Commission (commission) appeals from an order of a single justice designating the commission as the appellant under Mass.R.A.P. 16(i), 365 Mass. 863 (1974).

The Massachusetts Rules of Appellate Procedure place the burden of prosecuting an appeal and the initial costs of the appeal on the appellant. Rule 16(i) provides, as the normal rule of practice, that where both parties appeal the plaintiff in the court below shall be deemed the appellant. This rule of practice can be varied by agreement of the parties or by the court. Where, as here, the single justice could conclude that the primary party appealing the judgment is the defendant, it was proper for the single justice to designate that party as the appellant. The order of the single justice is especially appropriate in this action because the plaintiffs, even if successful on appeal, would not be able to recoup the cost of preparing the record appendix. Massachusetts Rule of Appellate Procedure 26(b), as amended, 378 Mass. 925 (1979), does not permit awarding of costs against an agency of the Commonwealth. Broadhurst v. Director of the Div. of Employment Security, 373 Mass. 720 , 721-725 (1977).

Order of the single justice affirmed.

Home GARY A. BELLO vs. MODERN ALARM CO., INC. & others.

10 Mass. App. Ct. 842

July 21, 1980

There is no merit to any one of the issues raised by the plaintiff in his appeal.

1. The plaintiff insists that the evidence did not warrant a finding that the plaintiff never owned stock in the defendant Modern Alarm Co., Inc. (Alarm). We have the benefit of summaries of evidence appended to the master's report in response to an order from the trial judge. The master's ultimate finding that the plaintiff never owned any stock is supported by the evidence and is consistent with his subsidiary findings. See Dodge v. Anna Jaques Hosp., 301 Mass. 431 , 435-436 (1938). "[T]he subsidiary findings are binding upon us unless they are clearly erroneous, mutually inconsistent, contradictory or vitiated in view of the controlling law." Tull v. Mister Donut Dev. Corp., 7 Mass. App. Ct. 626 , 627 (1979). At bottom, the plaintiff's appeal is no more than a lament that the master, on conflicting evidence, did not resolve the factual issues in his favor.

2. There was sufficient evidence to support the finding of $1,500 against Alarm. In fulfilling our duty to draw our own inferences and to

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reach our own conclusions (see Jones v. Gingras, 3 Mass. App. Ct. 393 , 395-396 [1975]), we leave undisturbed the judgment against Alarm alone and perceive no reason for ordering judgment against the individual defendants.

Judgment affirmed.