Mercadante v. Aldorasi

Massachusetts Supreme Judicial Court

Mercadante v. Aldorasi

4 N.E.2d 443, 295 Mass. 596, 1936 Mass. LEXIS 873

CourtMassachusetts Supreme Judicial Court

DecidedNovember 5, 1936

StatusPublished

Cited by6 cases

This text of 4 N.E.2d 443 (Mercadante v. Aldorasi) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mercadante v. Aldorasi, 4 N.E.2d 443, 295 Mass. 596, 1936 Mass. LEXIS 873 (Mass. 1936).

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Opinion

By the Court.

This is an action of tort to recover compensation for personal injuries alleged to have been received [597]*597through the negligent failure of the defendant to maintain in good condition a stairway in a building owned by him. After default damages were assessed in favor of the plaintiff for a substantial sum. The defendant then filed a “motion in arrest of judgment," setting forth that he was defaulted without fault on his part or negligence of his counsel, that the plaintiff fraudulently procured the damaging of the step in the staircase on which he contended that he was injured, that he was intoxicated at the time of his injury and that the stairway was in good repair. These averments were supported by affidavits. The motion in arrest of judgment was denied after hearing. The defendant appealed.

This does not fall within the class of cases which can be brought before this court by appeal. It is not rightly here and cannot be considered. G. L. (Ter. Ed.) c. 231, § 96. Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133, 134. Mathews v. Hathaway Baking Co. 284 Mass. 328. Palumbo v. Bambini, ante, 427.

It is not inappropriate to add that, even if the case were rightly here, no error of law appears on the record. The trial judge was not required to accept the affidavits as true. Thomajanian v. Odabshian, 272 Mass. 19, 22. Commonwealth v. Millen, 290 Mass. 406, 410.

Appeal dismissed.

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By the Court.

This is an action of tort to recover compensation for personal injuries alleged to have been received [597]*597through the negligent failure of the defendant to maintain in good condition a stairway in a building owned by him. After default damages were assessed in favor of the plaintiff for a substantial sum. The defendant then filed a “motion in arrest of judgment," setting forth that he was defaulted without fault on his part or negligence of his counsel, that the plaintiff fraudulently procured the damaging of the step in the staircase on which he contended that he was injured, that he was intoxicated at the time of his injury and that the stairway was in good repair. These averments were supported by affidavits. The motion in arrest of judgment was denied after hearing. The defendant appealed.

This does not fall within the class of cases which can be brought before this court by appeal. It is not rightly here and cannot be considered. G. L. (Ter. Ed.) c. 231, § 96. Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133, 134. Mathews v. Hathaway Baking Co. 284 Mass. 328. Palumbo v. Bambini, ante, 427.

It is not inappropriate to add that, even if the case were rightly here, no error of law appears on the record. The trial judge was not required to accept the affidavits as true. Thomajanian v. Odabshian, 272 Mass. 19, 22. Commonwealth v. Millen, 290 Mass. 406, 410.

Appeal dismissed.

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Bluebook (online)

4 N.E.2d 443, 295 Mass. 596, 1936 Mass. LEXIS 873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercadante-v-aldorasi-mass-1936.

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