Home NATHAN ULLIAN & others vs. LES TUILERIES, INC.

361 Mass. 863

March 6, 1972

This is an action of summary process, G. L. c. 239, Section 1, brought in the Municipal Court of the City of Boston to recover possession and appealed by the defendant to the Superior Court after a finding for the plaintiffs. The jury returned a verdict for the plaintiffs. The case is here on the defendant's exception to the denial of its motion for directed verdict. There was no error. The evidence was sufficient to permit jury findings that the defendant broke various covenants in the lease, that there was a proper entry for possession under the lease, and that a proper notice to quit for nonpayment of rent was given (G. L. c. 186, Section 11; see Oakes v. Munroe, 8 Cush. 282 , 285-288). Furthermore, the evidence was sufficient to permit a jury finding that the defendant failed to pay or tender "at least four days" before the return of the writ of summary process "all rent then due" so as to revive the tenancy. G. L. c. 186, Section 11. The acceptance of rental payments by the lessors did not operate as a waiver since they seasonably gave notice that they did not intend to waive their rights in the action pending. Kimball v. Rowland, 6 Gray 224 , 226. Mastrullo v. Ryan, 328 Mass. 621 , 623-624. See Miller v. Prescott, 163 Mass. 12 , 13. Cf. Whitehouse Restaurant, Inc. v. Hoffman, 320 Mass. 183 , 186. There is nothing in the defendant's argument that summary process was not the proper procedure to follow in this case. See Oakes v. Munroe 8 Cush. 282 , 284-285.

Exceptions overruled.

Double costs to be assessed.

Home WILLIAM A. LINDAHL vs. HELEN SULLIVAN.

361 Mass. 863

March 6, 1972

In this action in tort the plaintiff seeks damages for injuries sustained

Page 864

when he fell on a patch of ice on a public sidewalk adjacent to the defendant's premises. In his opening the plaintiff's counsel said he would prove that as a result of a broken drain pipe on the defendant's house, "when it rained during the winter time, water would naturally flow down the drain pipe and . . . discharge onto the public sidewalk" where it would freeze in cold weather. The case is here on the plaintiff's exception to an order of the judge directing a verdict for the defendant on the opening, after plaintiff's counsel conceded that no "snow and ice" notice had been given to anyone under G. L. c. 84, Section 21, as amended by St. 1955, c. 505. The plaintiff argues that such a notice was not required because his action was based on the defendant's negligent maintenance of a broken drain pipe and not upon a "defective condition . . . of adjoining ways, when caused by or consisting in part of snow or ice resulting from rain or snow and weather conditions," as such words are used in the statute. The notice was nonetheless required, and this argument is without merit. See Baird v. Baptist Soc. 208 Mass. 29 , 32, Roland v. Kilroy, 282 Mass. 87 , 88-90, and Souza v. Torphy, 336 Mass. 584 . The plaintiff also argues that the statute requires notice only to an "owner" and that no notice was required here because in his opening he stated that the defendant "owned and managed" the premises in question. The notice requirement applies generally to all persons sought to be charged with liability. See Sweet v. Pecker, 223 Mass. 286 , and Bychower v. United Cigar Stores Co. 253 Mass. 542 . Finally, the plaintiff asserts in his brief that the statute violates various specified provisions of the Massachusetts and United States Constitutions. His treatment of these serious assertions in his brief amounts to little more than the making of the assertions. We would be justified in declining to consider them for failure to argue them. S. J. C. Rule 1:13, 351 Mass. 738 . Commonwealth v. Martin, 358 Mass. 282 , 290. Instead we conclude that on the meager record before us the plaintiff has not sustained his burden of overcoming the presumption of constitutionality of legislative enactments. "The presumption of constitutionality must prevail in the absence of some factual foundation specifically set forth in the record for overthrowing the statute." Commonwealth v. Leis, 355 Mass. 189 , concurring opinion, p. 200. Pinnick v. Cleary, 360 Mass. 1 , concurring opinion, p. 32.

Exceptions overruled.