5 Mass. App. Ct. 205

March 14, 1977 - March 24, 1977

Middlesex County

Present: HALE, C.J., GOODMAN, & GRANT, JJ.

Oral argument of an appeal did not preclude this court from summarily affirming a judgment under Rule 1:28 of the Appeals Court. [205-206]

CIVIL ACTION commenced in the Superior Court on October 8, 1975.

The case was heard by John Paul Sullivan, J., on a master's report.

Joseph M. Binns, pro se.

John E. Heraty for Harold Gray.

GRANT, J. When we (1) ignore (a) the documents reproduced in the appendix which do not constitute parts of the record (see Jones v. Wayland, 4 Mass. App. Ct. 725 , 728-729 [1976]) and (b) the statements of fact in the appellant's brief which are not supported by anything found in the record (Currens v. Assessors of Boston, 370 Mass. 249 , 254 [1976]) and (2) concentrate on the master's report (which was not reproduced in the appendix; see Haddad v. Board of Appeals of Medford, 4 Mass. App. Ct. 843 [1976]) we discover that no substantial question of law is presented by the appeal. If the true character of the appeal had been discovered prior to the time the case was noticed for argument, the judgment would have been summarily affirmed under Rule 1:28 of the Appeals Court, 3 Mass. App. Ct. 806 (1975).

Counsel are advised that we are not precluded from acting under that rule merely because we entertain oral

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argument. See Sabatinelli v. Travelers Ins. Co. 369 Mass. 674 , 678, n.4 (1976).

Judgment affirmed.