5 Mass. App. Ct. 772

January 31, 1977

The judge did not err in allowing the defendants' motion for summary judgment based on the uncontested affidavit of the town clerk that no notice of the appeal from the board's decision (filed with the town clerk on September 12, 1975) was received by her office until October 20, 1975. G. L. c. 40A, Section 21, second par., as amended through St. 1974, c. 78, Section 1 (see now G. L. c. 40A, Section 17, first par., as appearing in St. 1975, c. 808, Section 3). Costello v. Board of Appeals of Lexington, 3 Mass. App. Ct. 441 , 442-443 (1975). The authority of the Costello case has not been impaired by Pierce v. Board of Appeals of Carver, 369 Mass. 804 (1976), which, at 808-809, cited the Costello case approvingly and affirmed that the dual time requirements of the second paragraph of Section 21, relative to the commencement of the action in the Superior Court and the filing of notice thereof in the office of the town clerk, will be "policed in the strongest way."

Judgment affirmed.

Home EVELYN CORREIRA, administratrix, vs. ARTHUR BEN DAVID, administrator (and two companion cases).

5 Mass. App. Ct. 772

February 2, 1977

The appeals which were taken in these cases on July 11, 1975, were dismissed on September 29, 1975, and are not before us. The only appeals which are before us are those from the orders of September 29, 1975, denying the appellants' motion to extend the time for filing a report of the evidence and to direct the register of probate to prepare the records in the three cases (which we take to be in legal effect a motion to permit late assembly of the records in those cases) and allowing the appellee's motion to dismiss all appeals in those cases. The record does not indicate that the appellants took any steps to comply with the rules relative to assembly of the record until they filed their motion for late assembly, well after the forty days allowed by Mass.R.A.P. 9(c), 365 Mass. 852 (1974), had expired (Westinghouse Elec. Supply Co. v. Healy Corp. ante, 43, 60 [1977]), [Note 1] and after the appellee had filed its motion to dismiss the appeals. In these circumstances Mass.R.A.P. 10(c), as amended effective February 24, 1975, 367 Mass. 919 , authorizes a trial court to dismiss an appeal (see the Westinghouse case at 90), and there is nothing in the record which suggests that the probate

Page 773

judge abused his discretion in doing so here. The appeal from the order of July 14, 1975, was not filed until September 30, 1975, which was beyond the time permitted by Mass.R.A.P. 4, 365 Mass. 846 (1974), as well as beyond the time in which that rule gives the trial court authority to allow late filing of an appeal on a showing of excusable neglect.

Orders of September 29, 1975, affirmed.

Appeal from the order of July 14, 1975, dismissed.


[Note 1] The motion, in so far as it sought an order for late assembly, was filed in the wrong court. See Mass.R.A.P. 9(e), 365 Mass. 853 (1974); Westinghouse Elec. Supply Co. v. Healy Corp. ante, 43, 61 (1977).