Home BROCKTON CREDIT UNION vs. BROCKTON SAVINGS BANK & others.

361 Mass. 887

May 2, 1972

In this case the credit union seeks to reach and apply $11,255.27 of the funds of Antonio A. Bellao (Antonio) in two trustee accounts with the savings bank, which were pledged as collateral security on a loan made to Antonio and his son, Arthur R. Bellao (Arthur). Antonio appeals from a final decree ordering the savings bank to pay the stated amount plus interest from the trustee accounts. The final decree was proper in all respects. Even though the evidence is reported, it is firmly settled that questions of fact, including the credibility of the witnesses, will not be set aside unless plainly wrong. Barnum v. Fay, 320 Mass. 177 , 180. Younker v. Pacelli, 354 Mass. 738 , 741. Our review of the evidence convinces us that none of the judge's findings was plainly wrong. There was ample evidence which supported his findings that Antonio had borrowed the money from the credit union, had signed the note evidencing the loan, had pledged the trustee accounts as security and had signed withdrawal orders covering those accounts. On the issue of the genuineness of Antonio's signature on the note, the judge was entitled to examine the standards himself, make the necessary comparisons and form his own opinion as to their genuineness. Levi v. Rubin, 241 Mass. 40 , 41. The judge was also warranted in finding that the credit union did not, without authority, add two additional names to a joint share account which was also pledged as security for the loan in question. Finally, the judge was correct in concluding that the alleged illegality of the joint share account was not properly raised by the pleadings. McLean Co. v. Sidebottom, 277 Mass. 158 .

Final decree affirmed with costs of appeal.

Home CLEDITH G. MALCOMB & another vs. BOARD OF APPEALS OF SOUTHBOROUGH & others.

361 Mass. 887

May 2, 1972

Malcomb and his wife appealed (G. L. c. 40A, Section 21) from a majority decision (four to one) of the town's board of appeals (the board) granting a permit (G. L. c. 40A, Section 4) for the use as a gasoline station of land (the locus) in a business district on Boston Road. The zoning by-law, Section IV, 4 (a), allows by special permit the construction of such a station "if determined by the [b]oard . . . to be neither detrimental nor offensive to the neighborhood." A Superior Court judge found that the locus, although in a business zone, is in a "neighborhood . . . residential in character" which "is sparsely settled and rural." This finding is supported by maps and photographs. The only buildings in the immediate area

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are single family houses, behind the locus on another street, and the residences (on the other side of Boston Road) of the applicants for the permit and of the Malcombs. The locus is now used as a retail merchandise outlet and, until 1954, had been used for the sale of eggs, milk, and produce. The judge also found that "public convenience does not require . . . a gasoline station in this area," that to have one would reduce "the property value of the abutters and . . . the neighborhood, and that the only benefit" would be to the owners of the locus, who can sell it to "a major gasoline company only if" the permit is granted. He concluded, applying the by-law test, that the proposed use would be "offensive or detrimental to the neighborhood." By final decree, it was directed that the permit be annulled. The board, under such a by-law, has an area of discretion to deny a permit (see Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277-278), and, if ascertainable standards are observed, to grant one. See Burnham v. Board of Appeals of Gloucester, 333 Mass. 114 , 116-160. See also Y. D. Dugout, Inc. v. Board of Appeals of Canton, 357 Mass. 25 , 30-31. On the facts found, we are of opinion that the judge could not properly conclude that the board's action was beyond its reasonable range of authority, and thus arbitrary and capricious. The decree is reversed. A new decree is to be entered declaring that the board did not exceed its authority and that no modification of its decision is required.

So ordered.