360 Mass. 859

December 6, 1971

The defendant was convicted of unlawful possession of an infernal machine in violation of G. L. c. 266, Section 102A, and appeals under G. L. c. 278, Sections 33A-33G. A police officer and a Federal investigator testified that they saw the defendant hand "something" to one Labbe. Labbe fled, but was soon caught. In Labbe's pockets were cartridges and a bottle of acid; on the ground near him were two guns, an automobile ignition key, and a "pyrotechnical bomb shell." Contrary to the defendant's contention, the jury could infer that the "something" was the "bomb shell" from testimony that Labbe ran, "holding whatever it was he had in front of him," "with the objects at his chest," and that the defendant later said he knew the device was a bomb. There was expert testimony that the device was explosive and would cause extensive property damage and personal injury. The judge properly instructed the jury that if they believed the prosecution witnesses they should conclude that the device was an infernal machine. The statute defines "infernal machine" to include "any device for endangering life or doing unusual damage to property, or both, by explosion."

Judgment affirmed.


360 Mass. 859

December 7, 1971

This is a summary process action for possession of the defendant's apartment. A lease to the defendant was executed in 1959 by the plaintiff and one Frank Leeder doing business under an oral partnership as H. N. Gorin and Leeder Management Company. In April of 1969, Frank Leeder, on behalf of the partnership, in conformance with the provisions of the lease sent a notice to the defendant terminating the tenancy as of September 15, 1969. Leeder died on June 26, 1969, and Gorin continued with the business under the same name. The defendant continued to pay rent to the partnership after the death of Frank Leeder until the plaintiff instituted the summary process action. There is no merit to the defendant's argument that the plaintiff, as an individual, is not entitled to maintain this action on the ground that the lease and the notice to terminate were both signed by Leeder in the name of the partnership. A tenant may show a transfer or expiration of landlord's title during the term of a lease. Lamson v. Clarkson, 113 Mass. 348 . In the instant case the termination of the partnership upon Leeder's death vested the rights of the lessor and the assets of the partnership in the plaintiff as

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surviving partner. G. L. c. 108A, Sections 25 (2) (d) and 31 (4). Cavazza v. Cavazza 317 Mass. 200 , 203-204. Moreover the defendant attorned to the plaintiff, Gorin, by continuing to pay rent to H. N. Gorin and Leeder Management Company after the death of Leeder at which time the partnership assets were in the plaintiff. Hawes v. Shaw, 100 Mass. 187 , 189.

Exceptions overruled.