BAY COLONY CONSTRUCTION CO., INC. vs. TOWN OF NORWELL & others.

MILTON SAVINGS BANK vs. ELISABETH AMELUNG.

5 Mass. App. Ct. 801

March 28, 1977

This is an appeal from a judgment entered in the Superior Court in a summary process action. G. L. c. 239. The only question argued is the constitutionality of G. L. c. 244, Section 14. Assuming that that question might properly have been raised in a summary process proceeding

Page 802

(see Wayne Inv. Corp. v. Abbott, 350 Mass. 775 [1966]), it was not raised below and cannot be raised for the first time on appeal. Young v. Mobil Oil Corp. 4 Mass. App. Ct. 805 (1976). Furthermore, the defendant had earlier instituted an action in the Superior Court in which she had sought to set aside the foreclosure of the mortgage by the present plaintiff. The constitutional question (if there was one) could have been raised in that action which was eventually dismissed by a judgment, the entry of which was assented to by the present defendant.

Judgment affirmed.