Home STATE REALTY COMPANY OF BOSTON, INC., petitioner.

334 Mass. 706

June 8, 1956

Petition dismissed. The subject matter of the exceptions sought to be established by this petition having been fully considered on the consolidated record on appeal in the cases of State Realty Co. of Boston, Inc. v. MacNeil Bros. Co. and MacNeil Bros. Co. v. State Realty Co. of Boston, Inc., ante, 294, this petition has become moot.

Home MACNEIL BROS. COMPANY vs. STATE REALTY COMPANY OF BOSTON, INC.

334 Mass. 706

June 8, 1956

Decree affirmed with costs of appeal. This is a petition filed in the Superior Court praying that the respondent be adjudged in contempt for failure to perform certain commands in a final decree of that court from which decree an appeal was taken by the respondent which is now before this court. The petitioner's contention is that the respondent is in contempt for failing to perform the decree between the time of its entry in the Superior Court and the time of the entry of the appeal in this court. G. L. (Ter. Ed.) c. 214, Section 19. Shortly after the appeal orders were entered both in the Superior Court and in this court which were inconsistent with the performance of most parts of the decree. G. L. (Ter. Ed.) c. 214, Section 22, as amended by St. 1948, c. 309. Moreover, operation of the final decree was stayed by the pendency of exceptions. G. L. (Ter. Ed.) c. 214, Section 25A. The judge in the Superior Court found as a fact that the respondent was not in contempt. There is nothing in the record that shows this finding to have been erroneous.

Home MACNEIL BROS. COMPANY vs. STATE REALTY COMPANY OF BOSTON, INC.

334 Mass. 706

June 8, 1956

Appeal dismissed with costs of this appeal to appellee. The plaintiff-appellant seeks to appeal from an order of the Superior Court denying its motion in that court to dismiss an appeal of the defendant-appellee. An order denying a motion to dismiss an appeal is neither an interlocutory nor a final decree, and is not appealable. Carilli v. Hersey, 303 Mass. 82 , 87-88. Medlinsky v. Premium Cut Beef Co. 320 Mass. 22 , 28. Thayer Co. v. Binnall, 326 Mass. 467 , 471.