Home SPEROS T. LOLOS vs. JEROME I. BERLIN & another.

341 Mass. 728

November 2, 1960

Order affirmed. This is an appeal from an order denying the plaintiff's motion to amend a decree after rescript. In Lolos v. Berlin, 338 Mass. 10 , 15, the original rescript had given the plaintiff leave to amend his bill to permit recovery of $668.15 with interest, and also had provided that the defendants should have costs of appeal. An amendment was allowed. The final decree after rescript provided (1) that the defendant Berlin pay the plaintiff the amount of $668.15 with $145.77 interest; (2) that the plaintiff pay the defendant Panetta, trustee, costs of $125.50; and (3) that the plaintiff pay the defendant Berlin costs of $12.50. The motion to amend the rescript sought to interchange the amounts of the costs so as to award the larger amount to the defendant Berlin. The plaintiff's statement in his brief that the defendant Berlin has left the Commonwealth, if materials, is not a fact in the record before us. The appealing party has not shown that there was error in the denial of his motion. The trial judge had discretion to allow a sum in excess of $50 for expenses actually incurred in printing the brief. G. L. c. 261, Section 25.

Home RICHARD B. NEWTON vs. STANLEY GOCHINSKI.

341 Mass. 728

November 2, 1960

Order dismissing report affirmed. This is an action of tort for negligently damaging the plaintiff's automobile. The plaintiff and the defendant were proceeding in opposite directions upon a public highway. The defendant was the operator of a truck which was towing a disabled truck owned by Henry Gochinski, who was "steering and braking" the disabled truck, which struck the plaintiff's automobile. The trial judge found for the plaintiff. The Appellate Division dismissed a report. There was no error. The defendant's requests were rightly denied for reasons stated in the opinion of the Appellate Division.

Home WILFRED E. PLOUFFE & another vs. GEORGE E. BOUDREAU & another.

341 Mass. 728

November 2, 1960

Exceptions overruled. This is an action of tort to recover for the alleged loss in value of a tract of land owned by the plaintiffs by reason of an alleged obstruction by the defendants of a strip of land over which the plaintiffs claimed a right of passage. The bill of exceptions states that the "gravamen of this action is plaintiffs' claim that the disputed strip was dedicated as a public way and that they are entitled to its use as an access to their tract immediately adjoining it." The

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judge found for the defendants. There was no error. The principal questions argued by the plaintiffs arise out of the denial of several requests for findings of fact. "Considered as such the judge was not required to give them." Kohutynski v. Kohutynski, 296 Mass. 74 , 77. The judge, however, treated some of them as requests for rulings of law. Of these only one merits discussion. Request no. 2 sought a ruling that the strip in controversy was dedicated to public use. The judge denied it because he found as a fact that if there ever was an offer to dedicate the strip the offer was revoked prior to any acceptance. See Longley v. Worcester, 304 Mass. 580 , 588; Am. Law of Property, Section 12.134. This finding was amply warranted, if not required, by the evidence. We are not here concerned with the rights of owners who have purchased lots abutting on ways not public that have been sold with reference to a plan (see Prentiss v. Gloucester, 236 Mass. 36 ), for the plaintiffs do not bring themselves within this principle. Thus the cases cited by them discussing it are not apposite. The plaintiffs' exceptions to evidence and to a remark of the judge during the trial reveal no error and do not merit discussion.