295 Mass. 596

November 4, 1936 - November 5, 1936

Court Below: Superior Court, Suffolk County


Practice, Civil, Appeal.

An appeal to this court does not lie from the denial by the Superior Court of a "motion in arrest of judgment" in an action at law.

TORT. Writ in the Superior Court dated February 10, 1932.

The defendant was defaulted and damages were assessed in the sum of $1,850. A "motion in arrest of judgment" was denied by Walsh, J., and the defendant appealed.

F. M. Zottoli, (J. F. Morelli with him,) for the defendant.

G. E. Constantino, for the plaintiff, submitted a brief.

BY THE COURT. This is an action of tort to recover compensation for personal injuries alleged to have been received

Page 597

through the negligent failure of the defendant to maintain in good condition a stairway in a building owned by him. After default damages were assessed in favor of the plaintiff for a substantial sum. The defendant then filed a "motion in arrest of judgment," setting forth that he was defaulted without fault on his part or negligence of his counsel, that the plaintiff fraudulently procured the damaging of the step in the staircase on which he contended that he was injured, that he was intoxicated at the time of his injury and that the stairway was in good repair. These averments were supported by affidavits. The motion in arrest of judgment was denied after hearing. The defendant appealed.

This does not fall within the class of cases which can be brought before this court by appeal. It is not rightly here and cannot be considered. G. L. (Ter. Ed.) c. 231, ยง 96. Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133, 134. Mathews v. Hathaway Baking Co. 284 Mass. 328. Palumbo v. Bambini, ante, 427.

It is not inappropriate to add that, even if the case were rightly here, no error of law appears on the record. The trial judge was not required to accept the affidavits as true. Thomajanian v. Odabshian, 272 Mass. 19, 22. Commonwealth v. Millen, 290 Mass. 406, 410.

Appeal dismissed.