Home WENTWORTH BUILDING CORPORATION vs. ISRAEL BERNSTEIN.

346 Mass. 770

November 1, 1963

Order dismissing report affirmed. The Appellate Division dismissed a report in which the judge in an action of contract, begun before the expiration of the term provided for in a written lease, awarded damages to the plaintiff lessor for breach of covenants of the lease. The defendant lessee, after summary process was returned against him following a notice to quit for nonpayment of rent, surrendered the keys and vacated the premises on August 26, 1960, paying rent up to and including that day. Damages awarded represent the loss sustained by the lessor during the period the premises were vacant commencing August 27, 1960, and ending October 31, 1960, when the lessor rented the premises to another. The lease provided that the lessor could seek indemnification or recover damages. The lease was terminated. G. L. c. 186, Section 11. The alternate remedial covenants survived the termination and were enforceable. An election of remedies was, however, required. Gardiner v. Parsons, 224 Mass. 347 , 350. The commencement of the instant action was an election to recover damages and was not premature. Cotting v. Hooper, Lewis & Co. Inc. 220 Mass. 273 , 276.

Home WANDA J. K. HOLDEN vs. THADDEUS J. HOLDEN.

346 Mass. 770

November 1, 1963

The decree nisi granted a divorce and $20 a week as alimony to the childless libellant. The libellee contests only the award of alimony. The judge's finding that the libellant's net average weekly earnings were $80 rather than $96.28 was, as agreed by the parties, plainly erroneous. Although the amount of the error does not completely counterbalance the award, it does, when corrected to compute the libellant's earnings on a monthly basis, result in a sum which is in excess of the libellant's monthly expenses as determined by the judge. The determined expenses include a finding of the libellant's medical needs which seems rather generous when measured against the reported testimony. Whether the judge would have awarded alimony had he correctly found the libellant's net weekly earnings we are unable to say. The decree is reversed in so far as it awards alimony and is otherwise affirmed. The case is remanded for further consideration and determination. Hillery v. Hillery, 342 Mass. 371 .

Home MAX FISHER'S (dependent's) CASE.

346 Mass. 770

November 1, 1963

Decree affirmed. The board found that M & S Realty Trust, the insured under a policy covering the period from September 21, 1956, to September 21, 1957, was the owner of a building and cotenant of the basement with Fisher Shoe Company, the employer. On July 10, 1957, the employee, who was a trustee of M & S Realty Trust, was found by his son stabbed to death in the basement. There was no evidence of larceny and the crime is unsolved. The insurer's first notice of the death was a claim filed by the employee's son and administrator of his estate on October 28, 1958. The instant claim was filed by the widow on March 10, 1959. The board concluded that (a) the late claim was not due to mistake or other reasonable cause; (b) there was prejudice to the insurer; (c) the injury did not arise out of and in the course of the deceased's employment; (d) the presumption of G. L. c. 152, Section 7A, was rebutted by all of the evidence; and (e) the

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insurer was not on the risk at the date of death. The decree properly dismissed the claim. Apart from other defences, where, as here, the insurer had no reason or opportunity to investigate for fifteen months, there was a substantial basis for a finding of prejudice to the insurer. Consequently, the proceedings were barred since the claimant failed to show that the provision in G. L. c. 152, Section 49, limiting the effect of Section 41, applied. Kangas's Case, 282 Mass. 155 , 159. Meagher's Case, 293 Mass. 304 , 308. Zabec's Case, 302 Mass. 465 , 468-469. Tassone's Case, 330 Mass. 545 , 548. Russell's Case, 334 Mass. 680 , 682-683. Lendall's Case, 342 Mass. 642 , 647.