344 Mass. 758

May 31, 1962

Exceptions sustained. Judgment for the defendants. The plaintiff, who lived with his parents, was injured on November 2, 1955, by reason of a fall alleged to have been caused by a defective step on premises (a single family house) which his father had rented from the defendants as a tenant at will. A jury returned a verdict for the plaintiff. The question is whether the judge erred in denying the defendants' motion for a directed verdict. There was no evidence that the defendants retained control of that part of the premises where the accident occurred. The sole basis for recovery is that the defendants failed to comply with an agreement in which they "retain[ed] the responsibility of any exterior maintenance necessary to the property." This undertaking, as amplified by other evidence, was not of the very unusual sort described in the third category stated in Fiorntino v. Mason, 233 Mass. 451. Rather it falls within the second category mentioned in that case; it was an agreement to repair on notice. Collins v. Humphrey, 314 Mass. 759. Jacovides v. Chaletzky, 332 Mass. 225. It could have been found that the defendants failed to repair the step in question after notice. But the "landlord under such a contract is not liable for personal injuries resulting from a defective condition of the premises unless he makes repairs and makes them negligently." Fiorntino v. Mason, supra, at page 453. The denial of the defendants' motion for a directed verdict was error.

Home EMMA B. KING & another, trustees, vs. JAMES J. DORGAN & another.

344 Mass. 758

June 1, 1962

Decree affirmed with costs of this appeal. This is a suit to enforce a restrictive covenant contained in a deed given by the plaintiffs on April 26, 1958, to the defendants' predecessors in title. From a decree dismissing their bill the plaintiffs appealed. The original restriction read: "The premises are conveyed subject to the restriction that no building or structure shall be erected thereon intended or designed to be used, nor shall said premises be used, for any purpose in connection with the existing Fair Grounds or any future race track in the vicinity either for parking or for concessions of any kind in connection with said Fair Grounds or such race track or for any other purposes so connected." On August 26, 1958, the plaintiffs executed under seal a document entitled "Release of Restriction" which deleted the words "either for parking or" from the original restriction. During 1960 the defendants permitted patrons of a nearby race track to park their motor vehicles on the land which is subject to the restrictive covenant. For the reasons stated in the judge's decision, we agree with his conclusion that "the restrictive covenant, as ultimately amended by said document of August 26, 1958, does not prohibit the defendants . . . from using said land for the parking of motor

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vehicles thereon." See Krinsky v. Leventhal, 323 Mass. 160. Cf. Quintin Vespa Co. Inc. v. Construction Serv. Co. 343 Mass. 547, 552-553.