358 Mass. 797

June 29, 1970

By this bill, the plaintiff (Steinberg), a produce broker, seeks to enjoin the defendant (Produce) from interference with access to Steinberg's office space in a thirty-five acre market center, owned by Produce. Produce leased about 2,100 square feet of space to Rodes & Sons (Rodes). Rodes sublet some office space to Steinberg as tenant at will under an agreement by Steinberg, as subtenant (purportedly directly with Produce), to "observe . . . all . . . rules and regulations promulgated by . . . Produce." The lease to Rodes required Rodes to "comply with the reasonable rules and regulations . . . promulgated by" Produce governing various specified facilities (e.g. shipping platforms, railroad tracks, and parking, which are to be subject to Produce's "reasonable and uniform . . . regulations") and "such other reasonable rules and regulations as . . . [Produce] shall from time to time promulgate for . . . use of the [b]uilding or for the benefit of the tenants." The directors of Produce have adopted rules for the use of the market. Under these, unlimited access to the market is given to several hundred persons engaged as receivers, or employees of receivers, of produce and as service employees (not selling produce). Steinberg and there other brokers (and certain buyers' representatives) gain access only after 5:30 A.M. on weekdays, except that some firms given unlimited access do engage in brokerage "with personnel . . . also . . . active in . . . receiving." The record does not sufficiently establish (if that be a matter of any significance) that persons given unlimited access to the market as receivers of produce perform any brokerage functions before 5:30 A.M. On agreed facts, the trial judge correctly concluded that Produce reasonably classified users of the market according to their particular functions; that the rules were not arbitrary but "designed to permit the orderly regulation of the premises"; and that Steinberg is bound by Produce's lease to Rodes. The separate classification in the matter of access of (a) receivers who must be on the premises early to unload freight cars and trucks and prepare displays, and (b) persons serving only as brokers, who have no unloading function, cannot be said, on this meager record, to be an unreasonable method of assisting the convenient and safe use of the market. Steinberg, as subtenant at will, takes all its interest, including any right to quiet enjoyment and all rights of access, subject to Produce's power to prescribe regulations.

Decree affirmed with costs of appeal.


358 Mass. 797

June 29, 1970

This action of contract is in three counts for rent under three written leases, each of a separate floor of a factory building at 157 Center Street, Brockton. For a previous controversy between these parties relative to rent of this

Page 798

property, see Urbano v. Ouimet Stay & Leather Co., 355 Mass. 32 . Count 1 under a lease dated January 26, 1961, is for the rental of the basement "for the months from July 1, 1964 to April 1, 1965 being 10 months at $225 per month $2,250." Count 2 is under a lease dated March 1, 1961, of the third floor "for the months from July 1, 1964 to April 1, 1965, being 10 months at $250 per month $2,500." Count 3 is under a lease dated June 21, 1961, for the first floor "for the months from July 1, 1964 to April 1, 1965, being ten months at $250 per month $2,500." It will be noted that there is an error in the three counts in computing the period at ten months instead of nine months. This has the effect of asking for an extra month's rent of $250 or $225 in the total of each count. A motion by the plaintiffs for immediate judgment was allowed. Subsequently the same judge vacated his allowance of the motion and ordered the case advanced for speedy trial. Such subsequent action of the judge did not in legal effect deny the motion; further action on it still might be taken. But, because of the mistakes in the declaration noted above, there was error when later the motion was allowed by another judge. [Note 1] The defendant's exception to its allowance is sustained. It is an imposition on the court to bring the case here on this record. Should the case come here again we expect that the record will contain an accurate statement of all the facts material to the issue of the surrender alleged in the defendant's answer and on any other issues which are to be argued.

Exceptions sustained.


[Note 1] The mistakes show that, as to the amount of damages, a genuine issue of fact existed, and a judgment for the plaintiffs, at most, could have been entered subject to the assessment of damages. G. L. c. 231, Section 59, as amended through St. 1965, c. 491, Section 1.