Home JOHN P. CANELIAS vs. VICTOR G. FIELDS.

361 Mass. 871

April 3, 1972

This bill in equity was brought for an accounting in 1959. The bill alleges an agreement between the parties that the plaintiff would construct a house on the land of the defendant and that upon the sale of the house the profits or losses would be divided equally. The case was tried before a master. After the master's report there followed a number of exceptions, recommittals and supplementary findings. Finally on August 28, 1967, the master's reports were confirmed by an interlocutory decree. The defendant appeals from the interlocutory decree and from the final decree ordering the plaintiff to pay the defendant the sum of $768.20, with costs of $18. A review of the entire record discloses no error.

Interlocutory decree affirmed.

Final decree affirmed with costs of appeal.

Home AUGUSTA ENBINDER vs. COMMONWEALTH (and a companion case).

361 Mass. 871

April 3, 1972

A single justice correctly sustained a demurrer to a petition in the county court brought under G. L. c. 211, Section 3, as amended by St. 1956, c. 707, Section 1, to review a conviction for larceny in the Municipal Court of the City of Boston. This court, as matter of discretion, seldom will exercise the authority given to it under Section 3, especially where another remedy exists. The demurrer to the petition for a writ of error, seeking review of the same conviction, is an unsatisfactory method of dealing with allegations of the type set out in the petition. As matter of discretion, the single justice appropriately should have withheld action on the demurrer until after obtaining a more complete record concerning the Municipal Court proceeding either (1) by requiring an extended return from the Municipal Court judge (cf. Southwick Birds & Animals, Inc. v. County Commrs. of

Page 872

Worcester County, 360 Mass. 133 , 134, fn. 1, or (2) by taking evidence (directly or through a commissioner) concerning the Municipal Court proceeding. For the purpose of obtaining an adequate basis of fact on which to consider this matter, the order sustaining the demurrer to the petition for a writ of error is to be vacated. The case is remanded to the county court for further proceedings consistent with the views expressed above. The exception to the order with respect to the petition for relief under G. L. c. 211, Section 3 (as amended), is overruled, and that petition is to be dismissed in the county court.

So ordered.