8 Mass. App. Ct. 924

November 8, 1979

1. The plaintiff's principal contention on appeal is that it was error for the Superior Court judge to strike certain of the findings contained in the master's report. We do not agree.

The judge struck "all of the Master's findings which concern issues which necessarily and directly involve" the Chamberlayne School and Chamberlayne Junior College (Chamberlayne), and its trustee in bankruptcy, as inappropriate because neither was a party to this litigation. He ruled that "[i]t makes no judicial sense at this stage of the proceedings to join [them] as parties defendants." See Mass.R.Civ.P. 19(a)(1), 365 Mass. 765 (1974). His ruling striking those portions of the master's report was neither erroneous as matter of law nor

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an abuse of discretion. See Mass.R.Civ.P. 53(e)(2), 365 Mass. 820 (1974) ("The court after hearing may adopt the report or may modify it or may reject it in whole or in part . . .").

Moreover, as there was already pending a bankruptcy proceeding involving these same parties, we think that the judge could properly have concluded, as he appears to have done, that in such circumstances the specific matters involving them should be presented to the Bankruptcy Court or the United States District Court which has jurisdiction over the assets of Chamberlayne. See 28 U.S.C. Section 959(a) (1976).

2. The plaintiff also claims error in the denial of costs to it. See Mass.R.Civ.P. 54(d), 365 Mass. 821 -822 (1974). The desired costs were "wholly in the discretion of the court." G. L. c. 261, Section 13, as appearing in St. 1973, c. 1114, Section 345. See George v. Coolidge Bank & Trust Co., 360 Mass. 635 , 640 (1971). On this record we discern no abuse of discretion.

3. The judge's decision was correct in the other respects complained of.

Judgment affirmed.