11 Mass. App. Ct. 921

January 28, 1981

1. There is no genuine question as to the sufficiency of the evidence to warrant the

Page 922

jury's verdict for the plaintiff. 2. The defendant has failed to sustain his burden of demonstrating error in the judge's preliminary ruling concerning the admissibility of secondary evidence of the contents of a record of the plaintiff's assignor. That ruling followed a bench conference which was not recorded and which has not been made available to us under Mass.R.A.P. 8(c), as appearing in 378 Mass. 933 (1979). For all that appears, the plaintiff's counsel properly satisfied the judge that the prerequisites to the admissibility of secondary evidence had been met. See Fauci v. Mulready, 337 Mass. 532 , 540-542 (1958). An inference to that effect is warranted by the failure of the defendant's counsel to heed the judge's admonition that he register his objections (Mass.R.Civ.P. 46, 365 Mass. 811 [1974]) to the particular questions which might be asked concerning the contents of the record.

Judgment affirmed.