Home ALFRED E. SMITH, administrator, vs. ROBERT G. SMITH & others.

5 Mass. App. Ct. 874

October 12, 1977

These are cross appeals from a decree entered February 1, 1974, which allowed the first and final account of the administrator of the estate of Anna E. Haley following an amendment of that account by the court which reduced the amount asked by the administrator for counsel fees. We have before us a report of the material facts and a transcript of the evidence. 1. The administrator's appeal is limited to a claim that the judge erred in reducing the item for counsel fees. No error or abuse of discretion in reducing the claimed counsel fee has been demonstrated. Old Colony Trust Co. v. Third Universalist Soc., 285 Mass. 146, 151 (1934). Miller v. Miller, 339 Mass. 262, 265 (1959). 2. The single item concerned in the contestants' cross appeal is not properly before us, as the issue was not raised below and, in fact, was expressly waived by the contestants at the hearing on the allowance of the account. Milton v. Civil Serv. Commn. 365 Mass. 368, 379 (1974). First Fed. Sav. & Loan Assn. v. Merrimack Valley Natl. Bank, ante, 320, 323-324 (1977).

Decree affirmed.


5 Mass. App. Ct. 874

October 13, 1977

It appears that the plaintiff sought to have a Probate Court modify its judgment of divorce, under which she was granted custody of the parties' two minor children, so as to permit her to remove the children to Nova Scotia (G. L. c. 208, Section 30). The probate judge declined to modify the judgment and enjoined the plaintiff from removing the minor children from the Commonwealth. The plaintiff then moved before a single justice of this court to suspend the injunction pending appeal pursuant to Mass.R.A.P. 6, as amended effective January 1, 1977. 371 Mass. 914 . The single justice denied both the plaintiff's motion to suspend the injunction and her motion for reconsideration of his initial ruling. The plaintiff appealed from the single justice's denial of her two motions, and only those appeals are before us. There was no error. The single justice may in his discretion act to suspend a lower court's injunction, or he may require that it be attacked by the usual course of appeal. Rarely, if ever, can it be said that a single justice is in error in denying relief. Mamber v. Massachusetts Bank & Trust Co., 3 Mass. App. Ct. 714 (1975). See also Massachusetts Bonding & Ins. Co. v. Peloquin, 225 Mass. 30, 30-31 (1916); MacNeil Bros. Co. v. State Realty Co., 341 Mass. 725 (1960). There is no basis in this record for a finding of abuse of that discretion.

Orders affirmed.


5 Mass. App. Ct. 874

October 17, 1977

The trial judge, after a pre-trial voir dire, properly denied the defendant's motion to suppress his in-court identification by the victim of rape and related crimes, of which the defendant was convicted. His appeal is under G. L. c. 278, Sections 33A-33G. At the voir dire the victim testified

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that she had the defendant's face under observation for about one hour while they were both in the back of the automobile in which the defendant had put her. (The total incident took place over a period of two hours in the morning.) After the incident, she gave the police a detailed description of the defendant and subsequently identified him from an array of eleven photographs. Assuming, without deciding, that the victim's recognition of the defendant at a subsequent encounter in the Brighton court occurred (as the defendant argues) in improperly suggestive circumstances (cf. Commonwealth v. Leaster, 362 Mass. 407, 410-411 [1972]; Commonwealth v. Charles, 4 Mass. App. Ct. 853 [1976]) -- the course taken by the trial judge -- the Commonwealth satisfied its burden to show, by clear and convincing evidence, that the in-court identification would be independent of the encounter in the Brighton court. Commonwealth v. Leaster, supra at 415. Commonwealth v. Hands, 2 Mass. App. Ct. 890 (1974). Commonwealth v. Hogg, 4 Mass. App. Ct. 225, 228 (1976). See Commonwealth v. Chase, 372 Mass. 736, 745-746 (1977). The defendant's attack on the photographic identification is groundless; it is obvious from the testimony that the police conducted themselves fairly and that the victim was careful and conscientious.

Judgments affirmed.