At the original trial of this action (described as an action of contract but actually one in tort for deceit) in the Municipal Court of the City of Boston, the trial judge made a finding for the plaintiff. The defendant filed a motion for a new trial which the judge denied. The Appellate Division ordered a new trial. At the second trial before another judge there was a finding for the defendant. The sole issue before us is whether the Appellate Division was in error in vacating the finding for the plaintiff in the first trial and ordering a new trial. We are satisfied from our review of the record that the Appellate Division was warranted in ordering a new trial to prevent a miscarriage of justice. See G. L. c. 231, Section 108; Tuttle v. Brown, 10 Cush. 262 , 264-265.
Orders of Appellate Division affirmed.
This is an appeal from a final decree of the Superior Court that the board of appeals of the town of Sharon did not exceed its authority in denying a special permit for the construction of "a gasoline filling station within a parking lot of a shopping center in a Business District zone." "The evidence . . . consisted of five exhibits, one of which is a [s]tipulation." The parties also orally agreed on an additional fact. The trial judge's ruling that the plaintiff does not have "an absolute right to a special permit" is correct. Gulf Oil Corp. v. Board of Appeals of Framingham 355 Mass. 275 , 277. Likewise, there was no error in holding that the refusal to grant a special permit did not require detailed findings by the board of appeals. Ferrante v. Board of Appeals of Northampton, 345 Mass. 158 , 162.
The commission brought a bill in equity against the defendant for failure to comply with a subpoena directing it to produce for examination "[a]ll records or other information responsive to questions on the attached list. Also any and all employment records and information pertaining to Mr. George V. Kemp. Also EEOC-1 Report for 1967 and 1968." The parties stipulated to the trial judge that the sole issue is whether the defendant may be required to answer all of the questions enumerated in the "Investigative Guide -- Employment" memorandum annexed to the subpoena. Kemp's complaint charged discrimination based on color in allocating credit for vacation time allegedly due because of other employment in 1948 to 1950. Without making any preliminary finding on the merits of the complaint, the commissioner ordered answers to the "attached
list" which included, for example, the numbers of the following who were employed by the defendant and the specific categories in which they were employed: Negroes, Jews, Italians, Greeks, Liths and Poles. After hearing, the judge "found and ruled" that "the information sought . . . does not in any way relate to the matter of . . . [Kemp] and that no statutory authority exists in the . . . [commission] to require the answers." A decree was entered dismissing the bill. The judge was right. A reading of the "reasoning" in the commission's brief demonstrates how right he was.