Home CITY OF WORCESTER vs. PARK CONSTRUCTION CO., INC. (and a companion case [Note 1]).

361 Mass. 879

April 5, 1972

These appeals by the city of Worcester (Worcester) are from a final decree of the Superior Court dismissing Worcester's bill in equity for injunctive relief restraining arbitration proceedings concerning claims for extras by Park Construction Co., Inc. (Park) against Worcester; and from what was in effect an order of the Superior Court allowing a petition for confirmation of an arbitration award in favor of Park and for judgment thereon. In May of 1958, Park entered into a contract with Worcester to make certain alterations and additions to the Worcester City Hospital. The contract provided that all disputes between the parties in connection with the contract "shall be submitted to arbitration." A dispute arose over a claim for extras by Park for additional heating and ventilating work ($31,755.24) and plastering work ($15,021.89). In December, 1961, Park demanded arbitration for the heating and ventilating claim and in February of 1962 for the plastering claim. Park selected its heating claim arbitrator in January, 1962, and its plastering claim arbitrator in February, 1962. No useful purpose would be served in describing the delays in the appointment of arbitrators and the long series of correspondence, claims and counterclaims concerning the delays. Worcester finally appointed its arbitrators for both claims in October, 1967. At this time, one of Park's arbitrators became ill and a new arbitrator was not appointed in his place until June 10, 1969. During this entire time, the named arbitrators did not appoint the third arbitrator in accordance with the arbitration agreement. On July 9, 1969, Worcester refused to continue under the arbitration agreement claiming that the statute of limitations had run. Finally, on October 2, 1969, the parties being unable to reach any agreement, Park filed a demand for arbitration with the American Arbitration Association invoking the provisions in the arbitration agreement. The arbitration hearings proceeded to the award in favor of Park. A review of the entire record reveals no error. The demand for arbitration was made seasonably under the terms of the contract. The statute of limitations has no application in this case. World Brilliance Corp. v. Bethlehem Steel Co. 342 F. 2d 362 (2d Cir.). The American Arbitration Association's proceedings were an implementation of the demand for arbitration by Park approximately eight years before. Worcester's appeal in connection with the arbitration award is entirely without merit.

Final decree dismissing the bill in equity affirmed.

Order allowing the petition for confirmation of the award and for judgment thereon affirmed.


FOOTNOTES

[Note 1] Park Construction Co., Inc. vs. City of Worcester.

Home EDWARD CANTY and others vs. ALFRED M. DONOVAN and another. [Note 1]

361 Mass. 879

April 6, 1972

This is a bill in equity brought by the owners of one-story

Page 880

summer houses on lots within an alleged development scheme to restrain permanently the owners of a lot acquired in 1959 within the alleged scheme from adding a second story to their one-story house. The defendants appeal from a final decree permanently enjoining them from using their lot other than for a one-story private dwelling and ordering them to remove a second story addition they constructed on that lot. The deeds to the plaintiffs' lots and the defendants' lot contain almost identical restrictions against use except as one-story private dwellings. The original tract from which all the parties' lots were subdivided has a view to the ocean. Despite the omission of the restrictions in the original sale of some of the lots, the judge found that the plaintiffs had sustained the burden of proving that the one-story restrictions were pursuant to an original general scheme of development for the benefit of the entire tract and, therefore, were enforceable by the plaintiffs as appurtenant to their land. Snow v. Van Dam, 291 Mass. 477 , 480-484, and cases cited. Gilbert v. Repertory, Inc. 302 Mass. 105 , 107. Rahilly v. Addison, 350 Mass. 660 , 663. We agree. "Neither the restricting of every lot within the area covered, nor absolute identity of restrictions upon different lots, is essential to the existence of a scheme." Snow v. Van Dam, supra, at 483, and cases cited. Am. Law of Property, Section 9.29. See G. L. c. 184, Section 26, subsec. 5. The evidence supports the judge's findings that the restrictions were pursuant to a common scheme for the tract, that the restrictions were of actual and substantial benefit to the plaintiffs as required by G. L. c. 184, Section 30, that at least the plaintiffs Clemenzi were not barred from maintaining this suit by G. L. c. 184, Section 26, and that none of the factors listed in G. L. c. 184, Section 30, as precluding equitable relief or limiting the plaintiffs' recovery to money damages, exists in this case. See Rahilly v. Addison, supra, at 663-664. Compare Donoghue v. Prynnwood Corp. 356 Mass. 703 , 706-708.

Decree affirmed with costs of appeal.


FOOTNOTES

[Note 1] Maureen Donovan.