357 Mass. 774

May 1, 1970

The plaintiff seeks to recover $17,333.71 in contract for labor and the use of equipment allegedly furnished by it to the two defendants, during the course of construction on their property. On February 6, 1969, the defendants filed a motion alleging that there was no genuine issue of material fact but only questions of law in connection with the action, and they moved for the immediate entry of judgment in their favor. G. L. c. 231, Section 59. The motion was accompanied by an affidavit of each defendant alleging that "[a]t no time did I . . . enter into any contractual relationship, oral or written, with the plaintiff or make any agreements whatsoever with the plaintiff concerning the performance of work or providing of equipment at the . . . project, nor did I ever agree to pay for such work." Section 59 provides that such allegations are to be taken as admitted unless the opposing party shall file "contradictory affidavits" or "an affidavit showing specifically and clearly reasonable grounds for believing that contradiction can be presented at the trial but cannot be furnished by affidavits" (emphasis supplied). The plaintiff filed its affidavit on April 17, 1969. After a hearing, the defendants' motion for judgment was allowed, and the plaintiff is appealing from that order. There was no error. The pertinent part of the affidavit of the plaintiff's president was a statement that he "received numerous telephone calls from various persons including persons who stated that they were representatives of the owners; that each . . . advised me that if the subcontractor which hired the plaintiff failed to pay us, the owners would pay for our work" (emphasis supplied). This affidavit does not contradict the affidavits of the defendants, but rather substantiates the latters' claims that they did not hire the plaintiff. Neither does the plaintiff's affidavit show "specifically and clearly reasonable grounds for believing that contradiction can be presented at the trial but cannot be furnished by affidavits." For these reasons we hold that the plaintiff's affidavit is deficient, and that the facts alleged in the defendants' affidavits are to be taken as admitted. Ratner v. Rockwood Sprinkler Co. 340 Mass. 773 , 775. The order allowing the motion for judgment for the defendants must be affirmed. We therefore need not consider questions raised by the defendants as to the timeliness of the plaintiff's affidavit, and as to the applicability of G. L. (Ter. Ed.) c. 259, Section 1, Second.

So ordered.


357 Mass. 774

May 4, 1970

A hearing was held on June 4, 1964, on a petition, dated May 14, 1964, to the town's board of appeals. The petition sought either a zoning variance or exception for a "mixing, batching, and processing plant," and notice of the hearing so described the proposed use. An original decision was filed July 10, 1964, with the town clerk. After the appeal period had run, the board allowed an amendment seeking permission to "construct and install a stone crushing plant." A new decision granting an exception was dated

Page 775

August 20, 1964, and was filed with the town clerk on September 10, 1964. The original petition and notice were not sufficiently broad, specific, or informative to permit the relief in fact granted in the new decision after the amendment. The new decision, without new notice, related to different relief from that originally sought. It did not merely state additional reasons for the former decision. Cf. Dion v. Board of Appeals of Waltham, 344 Mass. 547 , 550-553. A majority of the court are of opinion that the final decree correctly dismissed the bill to enjoin enforcement of the building inspector's order to the landowner to cease operating the stone crushing plant and appropriately dealt with a counterclaim seeking relief against the landowner.

Final decree affirmed.