Home FREDERICK G. LADD & others vs. BOARD OF APPEAL OF MALDEN & another.

352 Mass. 777

May 2, 1967

This appeal to the Superior Court under G. L. c. 40A, Section 21, from the granting of a variance by the board of appeal of Malden was dismissed for supposed lack of jurisdiction. The defect relied on was the omission to name as a defendant or to serve Charles D. Kelley, a member of the board (also its clerk), who participated in the hearing and decision. There is a suggestion that this was due to a misunderstanding of Kelley's status. The dismissal reflected the mandatory language of Section 21. By a recent ruling, however, we have established that the section is not to be so construed. McLaughlin v. Rockland Zoning Bd. of Appeals, 351 Mass. 678 , 680-683. It does not appear that there was any failure in prompt notice to the board as such, or any delay in the representation of the city's interests by the city solicitor. Hence the allowance of a motion to correct the formal defect appears appropriate. The ordinances are not in the record, but it appears that there is provision for a board of five members and for three associate members, whose status, at least when not acting, is not clear. The five persons named as defendants and served, apart from Kelley, did not include Alfred L. Jacobson, a member, and Joseph Roche, an associate member, neither of whom participated in the hearing or decision. The statute specifies as parties "all the members of the board of appeals." In the circumstances we think it will suffice if an amendment provides for service on Kelley and Jacobson. The final decree is reversed and the case is to stand for further proceedings consistent herewith.

So ordered.

Home JOHN M. ROUSSELL, JR. & another vs. PETER VOLPE.

352 Mass. 777

May 2, 1967

On motions of the defendant the court directed verdicts for the defendant on each of two counts of a declaration in an action of tort in which a minor plaintiff sought recovery for personal injuries and his father for consequential

Page 778

damages. About four heavy wooden doors fell upon the minor plaintiff while he was at play in the cellar of a cottage owned by the defendant and entirely rented to a third party. The doors had been secured by tying them together with a rope which was also fastened to a stringer or joist above them. The cause of the fall of the doors does not appear in the portions of the transcript designated for our perusal in the outline bill of exceptions and there is no evidence of negligence in the manner in which they were stored. The accident occurred in Seabrook, New Hampshire. We thus apply New Hampshire law. Hall v. Hamel, 244 Mass. 464 , 466. Goodale v. Morrison, 343 Mass. 607 , 610. We discern no error in the allowance of the defendant's motions. The premises on which the minor plaintiff sustained his injury were not within the control of the defendant. Folsom v. Goodwin, 90 N. H. 467. St. Cyr v. Johnson, 92 N. H. 197. Black v. Fiandaca, 98 N. H. 33. While our disposition of this particular case does not turn on the point, we note that the plaintiffs, as excepting parties, failed to file "with or as a part of . . . [their] brief a record appendix reproducing such portions of the designated transcript" as they deemed necessary to their argument. Rule 22 (13) of the Rules for the Regulation of Practice before the Full Court, 345 Mass. 797 . This procedure should be followed in cases reaching us with an outline bill of exceptions.

Exceptions overruled.