Anderson v. National Sales Co.

4 Mass. App. Dec. 17

• Court: Massachusetts District Court, Appellate Division
• Decided: August 20, 1952
• Status: Published

Opinion

RECOMMENDATION

This petition to establish a report was referred to me, a judge, of said Appelate Division, for hearing, by the Presiding Judge.

After a finding was made for the plaintiff, the de-fendent duly filed a request for a report and filed a draft report.

Following a hearing on said draft report, the trial judge settled the form of the report, and prepared and signed the report as settled.

Alleging that the judge’s report does not conform to the facts of the case, and that therein have been included as facts items on which there was no testimony, the defendent brings this petition to establish a report.

The defendent sold to the plaintiff a television set. The judge, in part of his report, states in substance that the plaintiff purchased the set relying upon the defendant's recommendation and judgment, and that one Moore, an expert on, television sets, testifed that the defendent’s service man had wired said set improperly, and that a fire in the set was caused by faulty wiring. The defend-ent contends that no such evidence was given.

At a conference with the attorneys for both parties, the evidence to be presented at the hearing on said petition was discussed, and it was suggested that the trial judge might give testimony as to the issues raised by the defendent.

After a long delay, due mainly to the illness of one of the attorneys, a further conference was held with counsel for both parties who stated that the trial judge would not testify at a hearing. Counsel were then informed that unless, within two weeks, a certificate of the trial judge, similar to that indicated in the case of Patterson vs Cibrowski, 277 Mass. 260, 265, was presented, a recommendation that the petition be dismissed would be made.

No such certificate was presented, within the time allowed, and no request for further time was made.

As there was no evidence presented of the truth of the allegations set forth in this petition to establish a report, I recommend that it be dismissed.

Daniel J. Cavan

George P. Lordan, for the plaintiff William Levenson, for the defendent

DECISION

For the reason set forth in the above recommendation, this petition to establish a report is dismissed.

Charles F. Gadsby P.J.

Arthur L. Eno J.

Daniel J. Cavan J.