ALFRED P. DONOVAN & another vs. ENDICOTT JUNIOR COLLEGE.

CRANDALL DRY DOCK ENGINEERS, INC. vs. GLOUCESTER MARINE RAILWAYS CORPORATION.

334 Mass. 704

May 31, 1956

Exceptions overruled. This is an action of contract to recover a balance due for materials and services furnished by

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the plaintiff to the defendant. The plaintiff filed an affidavit of no defence. G. L. (Ter. Ed.) c. 231, Section 59B. The defendant filed a counter affidavit which the plaintiff contends was insufficient. The plaintiff alleges an exception to the denial of its motion for judgment, and argues that there is presented an order decisive of the case founded upon matter of law apparent on the record. There was no error. The denial of the motion for judgment presents merely an interlocutory matter. Lawrence v. Old Silver Beach, Inc. 303 Mass. 377 , 378. Scola v. Director of the Division of Employment Security, 326 Mass. 180 , 181. Thayer Co. v. Binnall, 326 Mass. 467 , 471. On the merits there likewise would be no error. Under G. L. (Ter. Ed.) c. 231, Section 59B, the judge, on these facts, was not required to enter an order for judgment, but could, as he did, advance the case to the short list for trial.