9 Mass. App. Ct. 861

March 5, 1980

The defendant appeals from the denial of his motion for a new trial (on indictments charging kidnapping, assault and battery by means of a dangerous weapon and confining with intent to commit larceny in a building) based on newly discovered evidence, namely, the recantation by the victim of his testimony at trial as to what had taken place. This recantation was itself later recanted but was reaffirmed about a year after it had been made. The reaffirmation was in affidavit form and contained a statement which was not in the first recantation: "There is no way I can positively say that Jack Cahill was present [at the scene] on that night." The victim testified at the hearing on the motion before the same judge who had presided at trial. His testimony at the hearing was to the same effect as that set out in the first statement and in the sworn affirmation of it. The judge found that the affidavits upon which the defendant based his motion lacked credibility, and, although he did not expressly say so, it necessarily follows that he did not believe the victim's testimony concerning his recantation. It was the judge's initial task on such a motion to determine the credibility of the recantation. Commonwealth v. Gwizdoski, 284 Mass. 578, 581 (1933). Commonwealth v. Robertson, 357 Mass. 559, 562 (1970). The judge did so, and his decision that the victim's recantation was not credible is final. Commonwealth v. Bernier, 359 Mass. 13, 16 (1971). Commonwealth v. Donahue, 6 Mass. App. Ct. 971 (1979). There was no error.

Order denying motion for new trial affirmed.


9 Mass. App. Ct. 861

March 7, 1980

The respondents, other than the town of Brewster, appeal from a supplemental decision of a judge of the Land Court which, on the basis of a stipulation entered into at trial between the town of Brewster and Sykes, held that there was no controversy between the town and Sykes as to the width of the easement claimed by Sykes, and that, as to land owned by the town, Sykes was not limited to the existing travelled way.

The stipulation in its entirety reads as follows: "Now come the parties hereto and stipulate that the Petitioner may have his decree of registration as prayed for subject to the stipulation that Crosby Neck Way in the

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above-entitled registration proceeding is in its entirety a way as shown on the plan filed with this honorable Court to which the public has a right of access."

The respondents challenge the authority of town counsel to have entered into the stipulation. However, since the respondents did not raise the issue of town counsel's authority at trial, they are now foreclosed from raising that issue on appeal. Regina Grape Products Co. v. Supreme Wine Co., 357 Mass. 631, 632 (1970).

We reject the respondents' claim that they raised the issue by requesting a finding of fact that Sykes had no rights beyond the existing travelled way and by seeking a ruling of law, which was in fact granted, that a town may not convey an easement without the authority of town meeting. The request for the finding of fact at best challenged the factual contents of the stipulation, i.e., that the road as shown on the plan filed by Sykes represented its dimensions and was a way to which the public had a right of access. The request in no way challenged the right of the town to enter into the stipulation, nor asked the court to set it aside.

Similarly, the respondents' request for a ruling of law was not equivalent to the argument now made. The statutory requirements relating to the grant of an easement bear no relation to the question whether a town may agree in court that no issue exists as to the location or width of a right of way, see Brocklesby v. Newton, 294 Mass. 41, 42-43 (1936), or whether a town may stipulate in a court proceeding that certain defenses are not available to it. See Quincy v. Brooks-Skinner, Inc., 325 Mass. 406, 410, 412-416 (1950). A request for a ruling of law preserves for appeal only the question specifically addressed by the request. Chem-Lac Products, Inc. v. Gerome, 327 Mass. 394, 395 (1951). Nolan, Civil Practice Section 731 (1975). In addition, even after trial, when counsel for the petitioner specifically requested the trial judge to clarify his original decision so as to spell out the effect of the town's stipulation on the portion of the way lying on land of the town, the respondents did not object or even reply to the petitioner's request. Since the respondents'requests did not raise at trial or prior to the supplemental decision the questions they now argue, they cannot raise them here.

Deciding as we do, we need not reach the question whether the respondents have standing to object to a stipulation which the town does not repudiate.

Decision affirmed.


[Note 1] George Herrmann, Kathleen Mogul, Louis Mogul, Ruth Y. Hsiao and William C. Hsiao, and the town of Brewster.