Home FREDERICK J. MARIA & others vs. BOARD OF APPEAL OF LOWELL & another.

348 Mass. 798

April 1, 1965

Notice to the city clerk of the plaintiffs' bill in equity under G. L. c. 40A, Section 21, was not given within twenty days after the decision of the board had been filed in the city clerk's office as Section 21 requires. Hence the Superior Court had no jurisdiction. Lincoln v. Board of Appeals of Framingham, 346 Mass. 418 . The plaintiffs argue that the action of the board from which they had appealed as a decision under Section 21 was not a decision of the kind referred to in Section 21. This argument in a circle is unavailing; the bill of complaint of course had to get over the threshold as an appeal from a decision in order to present any issue for the court's consideration. Compare Spaulding v. Board of Appeals of Leicester, 334 Mass. 688 . We agree with the judge, however, that the recorded action of the board in this case was an appealable decision. The motion on which all members "voted in favor" could not be understood to be anything other than a motion to grant the petition for a permit under Section 17 of the zoning ordinance (see G. L. c. 40A, Section 4) for a convalescent home. It incorporated a brief statement of the facts and reasons for the decision. G. L. c. 40A, Section 18.

Final decree affirmed.

Home HAMPDEN CORNICE WORKS, INC. vs. LEO SPEAR CONSTRUCTION CO. INC. & another.

348 Mass. 798

April 2, 1965

This is a petition under G. L. c. 149, Section 29, brought by Hampden Cornice Works, Inc. (Hampden) against the Leo Spear Construction Co. Inc. (Spear) and the Aetna Casualty and Surety Company (Aetna) to enforce a claim in connection with a subcontract to perform certain roofing and flashing work on housing construction in Ludlow for the Ludlow Housing Authority. Spear furnished security for payment by it as principal for labor and materials employed in the construction by a payment bond with Aetna as surety. A dispute arose between Hampden and Spear relative to the furnishing of flashing at the first and second floor levels. The matter was referred to an architect under an arbitration clause in the contract. He found that certain installations should be made by Hampden. This decision was appealed to the chairman of the State Housing Board who upheld the architect. A further appeal was taken by means of this petition. The dispute was whether open balcony floors or porch floors could be regarded

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as roofs and includable in the obligation of Hampden under its subcontract. The judge found no support in fact or law for the contention that the decision made by the chairman of the State Housing Board was not final and conclusive. G. L. c. 30, Section 39J. There is no error in the findings and rulings of the trial judge who quoted apt words from Foster v. Commonwealth, 318 Mass. 190 , 209, in rendering his decision which is reflected in the final decree.

Decree affirmed.