Home JAE CORPORATION vs. MASS. PORT REALTY CO., INC. & others.

3 Mass. App. Ct. 704

January 31, 1975

This appeal from a decree of the Superior Court appointing a receiver pendente lite of certain income producing real property is properly before us as the decree is "so far final in its nature as to be appealable to this court. Cambridge Savings Bank v. Clerk of Courts, 243 Mass. 424 , 427 [1923]." New England Theatres, Inc. v. Olympia Theatres, Inc. 287 Mass. 485 , 490 (1934), cert. den. sub nom. E. M. Loew's, Inc. v. New England Theatres, Inc. 294 U.S. 713 (1934). Vincent v. Plecker, 319 Mass. 560 , 564, n. 2 (1946). Lynde v. Vose, 326 Mass. 621 , 622 (1951). Wax v. Monks, 327 Mass. 1 , 2-3 (1951). Albre v. Sinclair Constr. Co. Inc. 345 Mass. 712 , 713 (1963). "No evidence is reported and the only question is whether the decree . . . could have been entered on the allegations of the bill." Id. at 712. The sworn allegations of the bill and of the supporting motion to appoint the receiver indicate a concerted and elaborate scheme by the defendants to delay and defraud the plaintiff as a creditor of the defendant Quinlan & Associates, Inc., and justified the conclusion that the present case is one "`where otherwise there would be wasting and loss of property which ought to be made available for payment of the debts of the corporation and which cannot be conserved in any other way so satisfactorily as by the appointment of a receiver. Falmouth National Bank v. Cape Cod Ship Canal Co. 166 Mass. 550 , 568 [1896].' New England Theatres, Inc. v. Olympia Theatres, Inc. 287 Mass. 485 , 492 [1934]." Hurley v. Boston R.R. Holding Co. 315 Mass. 591 , 616 (1944). George Altman, Inc. v. Vogue Intl. Inc. 366 Mass. 176 , 179-180 (1974). See G. L. c. 109A, Section 10(b).

Decree affirmed.

Home BOARD OF SELECTMEN OF KINGSTON vs. BOARD OF APPEALS OF KINGSTON & another.

3 Mass. App. Ct. 704

January 31, 1975

The selectmen appeal from a Superior Court decree affirming the decision of the board of appeals (board) granting a special permit for the construction of multiple dwellings. The court had annulled an initial decision of the board granting the permit and remanded the case to the board for "further proceedings" (while retaining jurisdiction of the case) without the necessity of bringing a new petition. The subsequent decision of the board to grant the permit again was affirmed by the court. The selectmen assert that (1) the second decision of the board was a nullity because of the failure to give new notice under G. L. c. 40A, Section 17, and (2) the use authorized under the permit was detrimental to the established or future character of the neighborhood or town. The record supports the court's ruling that "no new notice or advertisement was required" under

Page 705

G. L. c. 40A, Section 17, after remand (compare Josephs v. Board of Appeals of Brookline, 362 Mass. 290 [1972]) and its finding that the use involved would not be detrimental. Since the final decree upon the merits of the case is to be affirmed, we treat the board's appeal from an interlocutory decree as having been waived.

Decree affirmed.