PETER MAHONEY vs. MARIANNE GALLAGHER.

MARION KAPLAN vs. SAMUEL W. BLACK (and a companion case).

11 Mass. App. Ct. 1038

May 29, 1981

1. The action numbered 79-759 was properly dismissed for the reasons given by the judge in his comprehensive and carefully reasoned memorandum and order for judgment. In addition to the authorities cited by the judge, see Willett v. Webster, 337 Mass. 98 , 102 (1958); Fassas v. First Bank & Trust Co., 353 Mass. 628 , 629-630 (1968); Dwight v. Dwight, 371 Mass. 424 , 427-430 (1976); Boyd v. Jamaica Plain Co-op. Bank, 7 Mass. App. Ct. 153 , 160-164 (1979); Morganelli v. Building Inspector of Canton, 7 Mass. App. Ct. 475 , 479-480 (1979). As dismissal was required by the applicable principles of law, we need not decide whether the judge (a) was acting under Mass.R.Civ.P. 12(c), 365 Mass. 756 (1974), (b) was exercising his power to dismiss at the close of the plaintiff's opening statement (see Smith & Zobel, Rules Practice Section 41.9 [1977]), or (c) was correcting the earlier mistake made by a different judge who had denied the defendant's motion under Mass.R.Civ.P. 56, 365 Mass. 824 (1974). See Peterson v. Hopson, 306 Mass. 597 , 601-605 (1940); Coolidge Bank & Trust Co. v. First Ipswich Co., ante 923, 924 (1981); Genesco, Inc. v. Koufman, ante 986, 990 (1981). 2. In the action numbered 79-814, it does not appear that any question was raised below (see, e.g., John B. Deary, Inc. v. Crane, 4 Mass. App. Ct. 719 , 724 [1976]) as to whether summary process was the

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proper vehicle for recovering possession of premises which the courts had already determined were the property of Samuel W. Black. See Black v. Black, 376 Mass. 929 (1978). To the contrary, counsel expressly agreed with the judge that the result in No. 79-759 would control the result in No. 79-814. 3. Both judgments are affirmed, with double costs (G. L. c. 211A, Section 15); Black is to have counsel fees on appeal (see Katz v. Savitsky, 10 Mass. App. Ct. 792 , 798 n.8 [1980]; Leventhal v. American Discount Corp., ante 959, 960 [1981]) in the amount of $1,000, with an execution for that amount to issue out of the Superior Court in the action numbered 79-759.

So ordered.