Home BAILEY & JOYCE, INC. vs. LILLIAN SQUIRES KAMELAKIS.

338 Mass. 792

January 28, 1959

Exceptions overruled. This action of contract arose out of an agreement in writing between the plaintiff and the defendant under which the plaintiff undertook to renovate a building owned by the defendant. Count 1 of the original declaration was for breach of contract; count 2 was on an account annexed. The case was tried to a judge of the Superior Court who on June 10, 1955, took the case under advisement. At that time the defendant presented four requests for rulings, hereinafter called the June requests. On June 13, 1955, no decision having been made, the plaintiff filed a motion to amend its declaration by alleging a subsequent modification of the original contract. On July 5, the defendant presented three requests for rulings with respect to the motion to amend. On July 8, 1955, the judge allowed the motion and ordered the case reopened for the taking of further evidence; he denied the requests relating to the motion. The defendant excepted to the allowance of the motion and to the denial of her requests. On July 13, 1955, the defendant made a motion that the judge disqualify himself. This motion was denied subject to the defendant's exception. On July 18, 1955, the defendant demurred to the amended declaration and the demurrer was overruled subject to the defendant's exception. On December 23, 1955, the case came on to be heard pursuant to the reopening order. At that time the parties were afforded an opportunity to present further evidence but none was offered and the judge declared the case closed. On January 30, 1956, the judge found for the plaintiff in the amount of $8,505. No action was ever taken on the defendant's June requests. The defendant duly saved an exception to the "findings and rulings of the court . . . dated January 30, 1956." We have examined the points argued by the defendant and find them lacking in merit. We deal with them briefly as follows: 1. There was no error with respect to the June requests. Inasmuch as the case had been reopened to be heard under amended pleadings, it was incumbent on the defendant, if she still desired to press the requests, to make that fact known to the judge. 2. The amended declaration was good against demurrer. 3. The action of the judge in refusing to disqualify himself reveals no error of law. 4. Much of the defendant's argument is to the effect that the finding should have been in her favor. But there is no exception that brings this question here. The exception to the general finding presents no question of law. Leshefsky v. American Employers' Ins. Co. 293 Mass. 164 , 166-167. 5. Other exceptions have not been argued and are treated as waived.

Home CITY OF CHELSEA vs. MAX GOPIN.

338 Mass. 792

January 29, 1959

Decree affirmed. This is a suit in equity under G. L. c. 40A, Section 22, inserted by St. 1954, c. 368, Section2, to enforce Section 3 (b) of the zoning ordinance of the city of Chelsea providing that in a Residential district-Part A "No wooden building shall be erected, altered, arranged or designed to be occupied by more than two families." The evidence and the material facts found by the judge are reported. It appears that the defendant owns a wooden building in a Residential district-Part A which was already arranged and designed for more than two families when he acquired it on June 15, 1956. He cut out a rear door to comply with the building code, made some interior changes, and installed additional plumbing in accordance with permits issued by the building and plumbing inspector. The inspector testified that in his opinion the work did not constitute a violation of the zoning ordinance. The bill does not complain of unlawful use. On the evidence the conclusion of the judge that the defendant did not alter, arrange or design

Page 793

the house for more than two families was justified. There was no error in the final decree dismissing the bill, from which the plaintiff appealed.