357 Mass. 776

May 5, 1970

The final decree entered after hearing on the plaintiff's amended bill of complaint declared that the plaintiff was an unsatisfied judgment creditor of William in the sum of $750,000, that William transferred to Tillye in fraud of creditors $163,442.83, of which $93,442.83 was in the hands of Harold, and ordered that Harold pay $93,442.83 with interest to the plaintiff. The judge made findings of fact. The evidence is reported. 1. Harold's appeal on the merits fails. The findings of the judge, which we need not recount, are supported by the evidence, are not plainly wrong, and uphold the decree which, in turn, is within the scope of the amended pleadings. McMahon v. Monarch Life Ins. Co. 345 Mass. 261 , 262. 2. There was no error in denying William's motions to remove the decree pro confesso against him and to vacate the final decree. The original bill, filed November 2, 1965, was taken for confessed against William on December 28, 1965. A substitute bill adding Tillye as defendant was allowed May 22, 1967. William testified as a witness at the trial on October 24, 1968. On February 11, 1969, William moved to vacate the default decree on the ground that the original bill had been amended. The amendment merely named Tillye as one of those who, with Harold, as alleged in the original bill, had received fraudulent transfers from William. There was no material amendment affecting William. No greater relief was sought against him. There was no error in denying the motion to vacate the final decree.

Final decree affirmed.


[Note 1] William J. Leventhal, son of Harold; and Tillye Leventhal, wife of Harold. Tillye did not appeal.

Home FREDERICK J. MAHONY vs. BOARD OF ASSESSORS OF WATERTOWN (and three companion cases).

357 Mass. 776

May 5, 1970

The Appellate Tax Board dismissed appeals taken under G. L. c. 59, Section 65B (as amended through St. 1945, c. 621, Section 7), from assessments on two parcels of land. Mahony contended that part

Page 777

of each parcel was exempt from taxation because subject to an easement granted by Mahony to the town for "maintaining a public off-street parking area." Mahony's leave to appeal was granted under Section 65B upon condition that the unpaid balance of each tax be paid before a specified date. The board was warranted in dismissing each appeal when the balance of the tax was not seasonably paid. Failure to pay was "not due to his inability to pay, but . . . due to other reasons relating to the merits of the cases." The only statutory reason stated in Section 65B for permitting such an appeal is that the taxpayer "is unable presently to pay such . . . tax." If granted leave to appeal, he may be required to pay "the amount of the tax remaining unpaid, as a prerequisite to any hearing on the merits." We thus reach no questions such as (a) whether Mahony was entitled to any tax exemptions or assessment reductions because of the town's easement, or (b) whether (after separate assessment of the areas subject to the easment, or otherwise) the town may refrain from collecting any tax upon such areas which its agreement with Mahony may make it inequitable for it to collect. Cf. Leonardi v. State Tax Commn. 355 Mass. 454 , 459.

Decisions of the Appellate Tax Board affirmed.