Home JOSEPH R. MEDEIROS & others vs. BOARD OF ALDERMEN OF WOBUBN & another.

350 Mass. 767

February 7, 1966

The petitioners seek in a writ of certiorari an order quashing the action of the respondent board of aldermen in grant of a license to store and sell petroleum products and a special permit to erect a motor vehicle station on property owned by the respondent Anne R. Essigmann as trustee. She appeals from an order for final judgment quashing and declaring void the special permit. There was no error. The premises lay in a residential district and, as a special permit for an exception to the local zoning ordinance was sought, notice to the planning board of Woburn prior to hearing was required under G. L. c. 40A, Section 4, which incorporates G. L. c. 40A, Section 17. This notice was not given and thus the action of the respondent board in granting the special permit was invalid. The special permit itself was invalid for it failed to include a statement of conditions required by the zoning ordinance (hours of use, mode of lighting) under which the premises could be used as a gas station. These petitioners had standing and it was proper for them to seek review by a writ of certiorari since at the time the petition was filed possible errors of law on the part of the respondent board of aldermen in granting the special permit were not otherwise reviewable by the courts. Howe v. Attorney Gen. 325 Mass. 268 , 270, and cases cited. It is not necessary here to pass upon the further contention of the petitioners that the action of the respondent board was also invalidated by its failure to notify an owner of land which was located across a town boundary in Reading and abutted the premises. See G. L. c. 40A, Section 17.

Order for judgment affirmed.

Home UNION NATIONAL BANK vs. ALFONSO CANNATO.

350 Mass. 767

February 7, 1966

The holder of four promissory notes has brought this action in contract against the maker of them. The declaration is in four counts, one for each note, and was filed on November 2, 1964, the return day of the writ. The answer which was filed late by leave of court was a general denial that "the signature is genuine" and a demand for proof that "it" was. The judge's ruling at the outset of trial that it was not a separate special demand under G. L. c. 231, Section 29, did not harm the defendant, for photocopies of the four notes were properly admitted in evidence. The presumption of the validity of the signatures thus became operative and, in the absence of evidence to the contrary, required a finding for the plaintiff. G. L. c. 106, Section 3-307 (1), (1) (b). See also G. L. c. 106, Section 3-307 (2). The defendant has taken no exception to the denial of certain requests for rulings and they are not before us.

Exceptions overruled.

Home EDWARD KROCK INDUSTRIES, INC. & another [Note 1] vs. ELECTRIC MOTOR AND REPAIR COMPANY, INC. & another [Note 2].

350 Mass. 767

February 9, 1966

The case is reported by the judge who sustained demurrers to the plaintiffs' bill in equity which they declined to amend. They stake their entire case on the decree on demurrers. Elfman v. Glaser, 313 Mass. 370 . Electric

Page 768

Motor obtained a substantial judgment against Edward Krock in the United States District Court. 327 F. 2d 213, 339 F. 2d 73 (1st Cir.). Ostensibly to satisfy the judgment, Krock sent his check to Mr. Kozol, counsel. On the same day, the plaintiffs got, by this bill, an order restraining Mr. Kozol from disposing of the proceeds. The basis of the bill was that the judgment against Krock was obtained by the perjury of Ward who had testified for Electric Motor; its purpose was to apply the proceeds of the check to satisfy any award made to Krock in the present case against Electric Motor for alleged subornation of perjury. The judge was right. Where, as here, a judgment or decree is outstanding, one cannot recover damages allegedly due to fraud that led to the judgment or decree. Fishman v. Alberts, 321 Mass. 280 , 282, and cases cited. Further, a case between the same parties or their privies decided in a competent court of another jurisdiction will not be reviewed here. Homer v. Fish, 1 Pick. 435 , 438-441. See Albernaz v. Fall River, 346 Mass. 336 , 339. Reliance by the plaintiffs on Rice v. Coolidge, 121 Mass. 393 , and Hoosac Tunnel Dock & Elev. Co. v. O'Brien, 137 Mass. 424 , is misplaced since the defendants there were not, as Electric Motor was here, parties to the action in which the alleged fraud was committed. The interlocutory decree is affirmed. A final decree is to be entered dismissing the bill.

So ordered.


FOOTNOTES

[Note 1] Edward Krock.

[Note 2] Frank L. Kozol, Esquire, counsel for Electric Motor. William S. Ward, although named as a defendant, was not served and did not appear.