4 Mass. App. Ct. 781

February 17, 1976

We need not consider the board's contention that the plan submitted by the plaintiff for an endorsement that approval under the Subdivision Control Law was not required in fact showed a "subdivision" within the meaning of G. L. c. 41, Section 81L (as amended through St. 1965, c. 61), as the board's failure to act upon it within fourteen days after its submission entitled the plaintiff to such an endorsement (G. L. c. 41, Section 81P [as appearing in St. 1963, c. 363, Section 1]; Devine v. Town Clerk of Plymouth, 3 Mass. App. Ct. 747 , 748 [1975]), and the board's determination thereafter that the plan did require such approval was without legal effect (Cassani v. Planning Bd. of Hull, 1 Mass. App. Ct. 451 , 453-458 [1973]). Nor need we consider the board's claim, based on Pieper v. Planning Bd. of Southborough, 340 Mass. 157 , 164 (1959), that the plaintiff's bill in equity failed to raise the question whether he was entitled to such an endorsement by reason of the board's failure to take timely action, for it does not appear from the record that the board asserted such a claim of variance or estoppel before the master to whom the case was referred or the judge of the Superior Court who acted upon the master's report, either by filing objections to the master's findings relative thereto or otherwise. Hazard v. Keefe, 3 Mass. App. Ct. 775 (1975), and cases cited. The board's reliance throughout its brief on the transcript of the testimony heard by the master is misplaced, as it has long been settled that evidence which a master neither reports nor is ordered to report is not part of the record on appeal. Peabody Constr. Co. Inc. v. First Federal Parking Corp. 3 Mass. App. Ct. 768 (1975), and cases cited. We discover nothing in the changes in the applicable rules of court which took effect between the order of reference and the master's hearing to suggest a deviation from that principle. Compare Rule 90 of the Superior Court (1954), with Mass. R.Civ.P. 53(e)(1), (2), as amended, 367 Mass. 917 (1975), and Rule 49, Section 7, of the Superior Court (1974). Blakeley v. Pilgrim Packing Co. ante, 19, 20, n.2 (1976).

Judgment affirmed.


4 Mass. App. Ct. 781

February 18, 1976

There was no error in the order dismissing this petition for a writ of mandamus under G. L. c. 31, Section 46A, which was entered and appealed from before July 1, 1974. See G. L. c. 213, Section 1D, as in effect prior to St. 1973, c. 1114, Section 202. The judge's finding that the

Page 782

plaintiff knew of the termination of her employment "at least" by November 14, 1972, was not, as contended in the plaintiff's brief, based exclusively on documentary evidence. It obviously rested on a combination of a letter signed by her attorney bearing that date and oral evidence of the plaintiff's knowledge of the letter's content and significance at that time. Compare Colbert v. Hennessey, 351 Mass. 131 , 134 (1966). The finding was not plainly wrong and must therefore stand. Chartrand v. Registrar of Motor Vehicles, 347 Mass. 470 , 473 (1964). Powers v. Building Inspector of Barnstable, 363 Mass. 648 , 650 (1973). That being the case, her petition was brought more than six months after she "knew or should have known that h[er] discharge was being treated as final and effective." Chartrand v. Registrar of Motor Vehicles, 345 Mass. 321 , 328 (1963). S. C. 347 Mass. 470 , 475 (1964). The Superior Court was then without jurisdiction to entertain it. Coyne v. City Manager of Cambridge, 331 Mass. 270 , 272-273 (1954). Brooks v. Registrar of Motor Vehicles, 1 Mass. App. Ct. 78 , 79-80 (1973). Order dismissing petition affirmed.

Judgment for the defendants.