Home ANNA DIGIACOMO vs. MARY G. BALBONI, executrix.

3 Mass. App. Ct. 749

May 14, 1975

The Superior Court judge from whose order for judgment the defendant appeals (see Mass.R.Civ.P. 1A, subpar. 7, 365 Mass. 731 , [1974]) correctly ruled that the action was not commenced within six months after the defendant had given bond (see G. L. c. 197, Section 1, as in effect prior to St. 1969, c. 493, Section 1) for the reasons stated in his memorandum and order. See Smith v. Greeley, 291 Mass. 271 , 273 (1935); Moriarty v. King, 317 Mass. 210 , 214 (1944), and cases cited; Lapp Insulator Co. Inc. v. Boston & Maine R.R. 330 Mass. 205 , 213 (1953). We do not consider the other defenses argued in the defendant's brief, as she failed to assert them before the auditor to whom the case was referred and whose findings of fact were to be final, to preserve them by filing objections to the auditor's report (Kass v. Todd, 362 Mass. 169 , 173 [1972]) or a motion to recommit (Sheppard Envelope Co. v. Arcade Malleable Iron Co. 335 Mass. 180 , 184 [1956]), or otherwise to bring them to the attention of the Superior Court (Milton v. Civil Serv. Commn. 365 Mass. 368 , 379 [1974]).

Judgment for the plaintiff.

Home RINALDO A. SACCO & another vs. INSPECTOR OF BUILDINGS OF BROCKTON & others.

3 Mass. App. Ct. 749

May 15, 1975

The case was tried on the footing that the two saddle horses were used for recreational purposes, and there was no dispute that the use of the stable as shelter for the horses was subordinate to the principal use for residential purposes of the dwelling on the same lot. The questions for decision were whether such use of the stable (a) served "a purpose customarily incidental to the use of the principal building, including swimming pools, tennis courts and other recreational uses" (Section 27-61 of the ordinance; emphasis supplied) and (b) was "customary . . . [and] incidental to the principal use" (Section 27-25; emphasis supplied). The petitioners had the negative of those questions (Winship v. Inspector of Bldgs. of Wakefield, 274 Mass. 380 , 385 [1931];

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Williams v. Inspector of Bldgs. of Belmont, 341 Mass. 188 , 192 [1960]), which were ones of fact (Building Inspector of Falmouth v. Gingrass, 338 Mass. 274 , 276 [1959]; Williams v. Inspector of Bldgs. of Belmont, 341 Mass. 188 , 191-192 [1960]; Harvard v. Maxant, 360 Mass. 432 , 439, 440 [1971]). They made no effort to shoulder their burden on the questions. The judge's finding that "[t]here are numerous horse stables maintained by private individuals in residential areas in the City of Brockton" was amply supported by evidence (introduced through one of the interveners) of fourteen other privately owned stables lying within a one-mile radius of and in the same residential zoning district as the locus. His rulings as to the stable's being a permitted use under the ordinance (express as to Section 27-25 and implicit as to Section 27-61) were in accord with the principles illuminated in Harvard v. Maxant, 360 Mass. 432 , 437-439 (1971). As was the situation in Building Inspector of Holden v. Johnstone, 357 Mass. 768 (1970), the ordinance in the present case is clearly distinguishable from that considered in Pratt v. Building Inspector of Gloucester, 330 Mass. 344 (1953). There was no evidence of a nuisance. Compare Flynn v. Seekonk, 352 Mass. 71 , 72-73 (1967).

Judgment affirmed.