Home TILLYE LEVENTHAL vs. HAROLD A. LEVENTHAL.

351 Mass. 706

December 2, 1966

The respondent appeals from the denial by a judge of the Probate Court of his motion to dismiss a petition for support for lack of proper notice to him, and also from an order for the payment of a certain sum to the petitioner. There was no error. The respondent filed a special appearance, then contested the case on its merits. "The question whether proper service was made was for the Probate Court, and, in deciding it, the court was not confined to the return made, and must be presumed to have satisfied itself that the service was properly made." Edds, appellant, 137 Mass. 346 , 347. There is no showing that the judge's order for payment was not proper in the circumstances. See Ecklund v. Ecklund, 288 Mass. 517 , 518; Durfee v. Durfee, 293 Mass. 472 , 477.

Orders affirmed.

Home WHITE CARD CO. vs. MASTERCOLOR OF NEW ENGLAND, INC.

351 Mass. 706

December 30, 1966

The plaintiff, a tenant in a business building, was awarded damages for harm done to personal property on October 31, 1961, allegedly due to the negligence of the defendant, a tenant in the same building, in causing water to flow from its premises to the plaintiff's premises on the floor below. We dispose of the defendant's exceptions seriatim. The lease from the owner of the building to the defendant, in the face of a general objection, was admissible to show control of the premises. The testimony of a master plumber that the water had flowed from an overhead pipe in the defendant's premises and that the pipe had broken because a "strap iron" hanger designed to support it "had let go" was not inadmissible. The case was properly submitted to the jury since, on conflicting evidence, they could find that the plumber had informed the defendant's president of the broken "strap iron" hanger and had recommended that it is replaced, two weeks before the pipe broke. The plumber's testimony on cross-examination that "possibly" he had told the defendant's president about the broken "strap Iron" hanger on the morning of the discovery of the damage, did not nullify his testimony that he had told him two weeks before. It therefore could be found that the defective condition existed, that the defendant knew of it in sufficient time to repair it, and that it that the defendant knew of it in sufficient time to repair it, and that it neglected to do so, with consequent foreseeable damage to the plaintiff.

Exceptions overruled.

Home EMMA J. LEONARDI & others [Note 1] vs. CITY OF PEABODY.

351 Mass. 706

December 30, 1966

Two exceptions are before us following the trial of a petition for the assessment of damages for the taking of land by the city. The first relates to the denial of the petitioners' motion, made at the close of the evidence, that the entire testimony of the city's only qualified witness, who had testified without objection earlier in the trial, be struck from the record. That a party is not as of right entitled to have such a motion allowed has been discussed and decided with full citation of cases in Crowley v. Swanson, 283 Mass. 82 , 85, Cummings v. National Shawmut Bank, 284 Mass. 563 , 566-568 and Solomon v. Dabrowski, 295 Mass. 358 , 359-360. The other exception is to the denial of the motion for a new trial. The

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considerations which govern the disposition of a motion for a new trial were stated at length in Bartley v. Phillips, 317 Mass. 35 , 40-44, and have been so frequently confirmed and applied by us as not to require repetition. Haven v. Brimfield, 345 Mass. 529 , 533-534. There was no error.

Exceptions overruled.


FOOTNOTES

[Note 1] Jean V. Fornari and Patricia B. Nazzaro. Also All Concessions, Inc., intervening petitioner.