3 Mass. App. Ct. 716

March 3, 1975

This action, which was commenced by writ dated May 31, 1967, was rightly dismissed on May 24, 1974, pursuant to G. L. c. 155, Section 51, and G. L. c. 156B, Section 102. Under those statutes the defendant's corporate existence continued for a period of three years following its dissolution on May 12, 1971, for the limited purpose of prosecuting and defending litigation. It is clear that upon the expiration of the three-year period, subject to the exception set forth in the proviso at the end of each of those statutes (inapplicable to actions, such as this one, commenced prior to dissolution), the defendant ceased to exist even for that limited purpose. Boston Tow Boat Co. v. Medford Natl. Bank, 228 Mass. 484, 486 (1917). Bowen v. Dorchester Ice Co. 255 Mass. 159 (1926).

Order dismissing action affirmed.

Home PHILIP N. GALLAGHER & another vs. TRISTRAM'S LANDING, INC., & another.

3 Mass. App. Ct. 716

March 5, 1975

This bill in equity was properly dismissed for the reasons stated by the trial judge in her report of material facts and rulings of law.

Decree affirmed.


3 Mass. App. Ct. 716

March 5, 1975

The allegations of paragraph six of the plaintiff's bill to the effect that he had a right to use the easement over the alley as a means of public access to his restaurant were not denied or otherwise challenged by the defendants' answer or by their counterclaim. As we read the master's report (particularly as illuminated by paragraph three of the ultimate findings), no such question (as opposed to questions concerning the use and operation of the granted premises) appears to have been litigated between the parties. Accordingly, the final decree must be modified so as to strike paragraph six thereof. As it has been found

Page 717

that Mary Burgess has no interest in the servient tenement, and as there is nothing to indicate that she has participated in the construction of the fence in question, the decree is to be further modified so as to include therein a provision dismissing the bill as to her. As so modified, the final decree is affirmed.

So ordered.