Home RAYMOND V. SCALESSE vs. DAVID SIEGEL.

5 Mass. App. Ct. 784

February 28, 1977

In this action brought by a former tenant to recover monies advanced to his former landlord pursuant to a lease and an "Addendum to Lease" the trial judge found for the plaintiff in the sum of $3,100. The defendant appeals. 1. The judge's finding that a substitution of tenants was accomplished, and thus that there was a surrender of the lease by operation of law, was not erroneous. Although the testimony on the point was conflicting, the judge could have found that, after preliminary negotiations with the new tenant, the landlord instructed the former tenant to give the keys to the landlord's agent for delivery to the new tenant on the expectation that a new lease would be executed soon thereafter. In fact, the new tenant took possession of the premises (a restaurant) immediately; although a new lease was never executed, the new tenant took possession as a tenant at will. Contrast Epstein v. Gurney, 313 Mass. 255 , 256 (1943), Bandera v. Donohue, 326 Mass. 563 , 565-566 (1950), Anapolle v. Carver, 327 Mass. 344 , 346 (1951), and Cantor v. Van Noorden Co. Inc. 4 Mass. App. Ct. 819 (1976), with Washington & Devonshire Realty Co. Inc. v. Freedman, 263 Mass. 554 , 557-558 (1928), Walker v. Rednalloh Co. 299 Mass. 591 , 595, 597-598 (1938), and Taylan Realty Co. Inc. v. Student Book Exch. Inc. 354 Mass. 777 (1968). As the lease was terminated by surrender rather than by entry of the landlord following notice of termination or breach of certain conditions specified in the lease, the indemnification provision of the lease never became operative. See Priestley v. Sharaf's, Inc. 4 Mass. App. Ct. 218 , 221-222 (1976). 2. There was no error in the judge's ruling that the $5,000 advanced by the former tenant pursuant to the "Addendum to Lease" could be applied toward the former tenant's rental obligations. Since it was undisputed that the security deposit called for under the original lease was never paid, evidence of the parties' intentions concerning the "Addendum to Lease" was properly admitted; the meaning of the two written instruments had become doubtful in their application to the transactions between the parties. See Snider v. Deban, 249 Mass. 59 , 61 (1924). See also Antonellis v. Northgate Constr. Corp. 362 Mass. 847 , 849-851 (1973). 3. As the obligations of the former tenant ceased at the time the new tenant took possession of the premises, it follows that there was no error in dismissing the landlord's counterclaim against the former tenant.

Judgments affirmed.

Home HYMAN COHEN vs. BOSTON REDEVELOPMENT AUTHORITY.

5 Mass. App. Ct. 784

February 28, 1977

The plaintiff Cohen argues two issues on appeal from a judgment entered on a jury verdict awarding him $25,000 in a land

Page 785

taking by the defendant Boston Redevelopment Authority (BRA). 1. He claims prejudicial error in a tactic employed by counsel for the BRA to impeach the credibility of a witness for the plaintiff on cross-examination by referring to an appraisal figure contained in counsel's notes allegedly given by the witness at a prior hearing before an auditor which was for a lesser sum than that testified to by the witness on direct examination at trial. See Robinson v. Old Colony Ry. 189 Mass. 594 , 596 (1905); Leach & Liacos, Massachusetts Evidence 114 (4th ed. 1967). From our review of the transcript we are satisfied that the question ultimately allowed by the judge, whether the witness had testified to the lesser figure at the auditor's hearing, was a proper one and showed no abuse of discretion. The scope of inquiry into matters testing the accuracy, veracity and credibility of the witness rests largely in the sound discretion of the judge. Posner v. Minsky, 353 Mass. 656 , 661 (1968). Moreover, the witness' equivocal responses to counsel's questions with respect to his earlier testimony were in any event harmless. Mass.R.Civ.P. 61, 365 Mass. 829 (1974). Woodland Estates, Inc. v. Building Inspector of Methuen, 4 Mass. App. Ct. 757 , 763 (1976). See Brewster v. Giant Store, Inc. 362 Mass. 859 (1972); Carey v. Zayre of Beverly Inc. 367 Mass. 125 , 135 (1975). See also United States v. Socony-Vacuum Oil Co. 310 U.S. 150, 235 (1940). 2. There was no manifest error in permitting the BRA to introduce the sale price of a nearby property sold about a year earlier and claimed by the BRA to be comparable to the locus. "No two pieces of property are exactly alike and much must be left to the discretion of the presiding judge, who, in the first instance, is to determine whether there is such general similarity between the land sold and the land taken that the selling price of the former will furnish a fair criterion of the market value of the latter." Iris v. Hingham, 303 Mass. 401 , 408-409 (1939). See H. E. Fletcher Co. v. Commonwealth, 350 Mass. 316 , 324-325 (1966); Zambarano v. Massachusetts Turnpike Authy. 350 Mass. 485 , 487 (1966). Cf. Amory v. Commonwealth, 321 Mass. 240 , 255 (1947); Congregation of the Mission of St. Vincent de Paul v. Commonwealth, 336 Mass. 357 , 359 (1957); Corliss Realty Co. Inc. v. Commonwealth, 1 Mass. App. Ct. 689 , 690-691 (1974).

Judgment affirmed.