Home CHESTER RUDNICKI vs. RICHARD I. GOTTLIEB & others.

348 Mass. 772

October 29, 1964

This is a petition for a writ of error which was heard by a single justice of this court who ordered that a judgment for the defendants entered in the Superior Court be affirmed. We see no error in law or in fact. See G. L. c. 250, Section 3.

Order affirmed.

Home CAESAR TAMAGNO vs. LEON I. LESHAY.

348 Mass. 772

October 29, 1964

In the trial of an action of tort for the alleged negligence of the defendant dentist in his treatment of the plaintiff, the judge excluded, subject to the plaintiff's exception, a hypothetical question to a qualified dentist to determine if he had an opinion whether the use of certain materials and methods was consistent with good dental practice in the community. The burden is upon the excepting party to show error. Posell v. Herscovitz, 237 Mass. 513 , 516. Curtin v. Benjamin, 305 Mass. 489 , 494. The bill of exceptions fails to show any evidence that the methods or materials assumed in the question were used by the defendant, or any representation by the plaintiff, accepted by the judge, that evidence to that effect would be forthcoming. There was no error in excluding the question. Anderson v. Albertstamm, 176 Mass. 87 , 91. Earle v. New York Cent. & Hudson River R.R. 235 Mass. 61 , 65. State Bd. of Retirement v. Contributory Retirement Appeal Bd. 342 Mass. 58 , 66. There being no competent evidence of the defendant's negligence, there was no error in directing a verdict for the defendant. Brown v. United States Fid. & Guar. Co. 336 Mass. 609 , 614.

Exceptions overruled.

Home STANLEY KALMAN vs. ROBERT KALMAN.

348 Mass. 772

October 30, 1964

This is a bill in equity for an accounting of partnership affairs. The defendant filed a demurrer which was overruled, and subsequently he filed a counterclaim. The suit was referred to a master. The defendant raised numerous objections to the master's original report and to subsequent reports on recommittal. The defendant appeals from the trial judge's overruling of his demurrer, the implied denial of the defendant's motion to recommit the second report after recommittal, the interlocutory decree overruling the defendant's exceptions and confirming the master's reports, and a final decree favorable to the plaintiff. The grounds for the demurrer upon which the defendant appears to rely in his brief are that the bill is multifarious and that the plaintiff "has failed to do equity and is barred from seeking equitable relief." There was no error in overruling the demurrer. The bill clearly states matters pertaining to an accounting. "There is no inflexible rule by which to determine whether a bill is multifarious. Whether objection shall be sustained on this ground must be decided largely by the circumstances of each case." Spear v. H. V. Greene Co. 246 Mass. 259 , 269. The demurrer in setting forth the ground of failure of the plaintiff "to do equity" asserts facts beyond the facts stated in the bill and constitutes a speaking demurrer. Davenport v. Danvers, 332 Mass. 580 , 582. Our examination of the exceptions discloses that they do not raise questions of law. The defendant's contention that the motion to recommit the second report on recommittal should have been allowed as a matter of law is not

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sound. The question of recommittal rested in the discretion of the judge. New England Overall Co. Inc. v. Woltmann, 343 Mass. 69 , 75. United Auto Supply Co. Inc. v. Amaro, 346 Mass. 625 , 627-628. We see no merit in the defendant's argument that the omission from the final decree of "a ruling on the counterclaim . . . is reversible error." See Faulkner v. Lowell Trust Co. 285 Mass. 375 , 377. Zuckernick v. Jordan Marsh Co. 290 Mass. 151 , 153-154. Cf. Bordonaro v. Vandenkerckhaven, 322 Mass. 278 , 281. Compare Blume v. Oil-O-Chron, Inc. 287 Mass. 52 , 55. We are satisfied that the reports of the master were adequate to support the final decree.

Interlocutory and final decrees affirmed.