362 Mass. 855

June 2, 1972

Leventhal appeals from a decree of the Superior Court denying his petition for leave to file a bill of review. We state briefly the circumstances giving rise to this case. In March, 1965, Leventhal was found guilty of multiple counts of larceny of American Discount Corporation's (ADC) property. See Commonwealth v. Hamblen, 352 Mass. 438. That same month, ADC brought a bill in equity against Leventhal to recover its losses. On September 13, 1965, Leventhal acting with counsel assented to a final decree assessing damages against him in the amount of $750,000. Both Leventhal and his counsel signed the decree and no appeal therefrom was taken. In ensuing years, Leventhal repeatedly sought, unsuccessfully and by various petitions and motions, to avoid the effects of the decree to which he had assented. Cf. American Discount Corp. v. Leventhal, 357 Mass. 775. This petition for leave to file a bill of review followed. There was no error. The granting of such a petition rests within the sound discretion of the judge. Boston v. Santosuosso, 308 Mass. 189, 198, and cases cited. Curley v. Boston, 312 Mass. 58, 60. We have stated that such a petition should not be granted on the ground of newly discovered evidence unless "a new case is made out, which this court has never passed upon" (Gale v. Nickerson, 144 Mass. 415, 418; Crocker v. Crocker, 198 Mass. 401, 407. Boston v. Santosuosso, 308 Mass. 189, 198), and unless "it affirmatively appears, that he had a good defence on the merits, of which he has been deprived, or that some fraud or wrong has been practised upon him." Manning

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v. Woodlawn Cemetery Corp. 249 Mass. 281, 288. We have reviewed the present petition and conclude that it contains allegations substantially similar to those contained in Leventhal's earlier attempts to nullify the final decree and that, in any event, it does not present such a case as would warrant the relief prayed for by Leventhal. Therefore, there was no abuse of discretion by the judge in denying the petition. See Bartley v. Phillips, 317 Mass. 35, 42.

Decree denying the petition affirmed.