Brooksbank v. Epstein
Decision Date | 31 May 1977 |
Citation | 363 N.E.2d 291,5 Mass.App.Ct. 377 |
Parties | Rita V. BROOKSBANK et al. 1 v. Sidney EPSTEIN, trustee. |
Court | Appeals Court of Massachusetts |
Morton J. Sweeney, Springfield (Patricia A. Bobba, Springfield, with him), for defendant.
Gerard L. Pellegrini, Springfield (Seymour Tillman, Springfield, with him), for plaintiffs.
Before HALE, C.J., and GOODMAN and BROWN, JJ.
This is an action in the Superior Court to recover damages for personal injuries allegedly sustained by Rita V. Brooksbank (plaintiff) in a fall upon property owned by the defendant. 2 The jury returned a verdict for the plaintiff on count 1 of the declaration and awarded her $1,750 damages; they awarded her husband $3,600 consequential damages on count 2. On the plaintiffs' motion for a new trial pursuant to Mass.R.Civ.P. 59(a), 3 365 Mass. 827 (1974), the judge ordered the verdict on count 1 set aside and granted a new trial limited to damages unless within ten days of the entry of the order the defendant should agree to an addition of $22,500 to the verdict, to bring the total award to $24,000. The addition was not accepted. The motion was denied as to count 2.
The defendant has appealed from the allowance of this motion as to count 1, as well as from the denial of his motions for a directed verdict and for judgment notwithstanding the verdicts.
The defendant's appeal is not properly before this court. 4 Mass.R.Civ.P. 54(a), 365 Mass. 820 (1974), defines a 'final judgment' (see G.L. c. 231, § 113, as appearing in St.1973, c. 114, § 202) as '. . . the act of the trial court finally adjudicating the rights of the parties affected . . ..' An order granting a new trial pursuant to Mass.R.Civ.P. 59 is purely interlocutory and not a final judgment from which an appeal may be immediately entered in this court. Weiner v. Pictorial Paper Package Corp., 303 Mass. 123, 125--127, 20 N.E.2d 458 (1939); Via v. Asbestos Textile Co., Inc., 335 Mass. 210, 212, 139 N.E.2d 393 (1957); Alves v. Picard, 337 Mass. 77, 78--79, 148 N.E.2d 180 (1958); Compagnie Nationale Air France v. Port of New York Authy., 427 F.2d 951, 954 (2d Cir. 1970); General Motors Corp. v. Lord, 488 F.2d 1096, 1098--1099 (8th Cir. 1973). Giacobbe v. First Coolidge Corp., --- Mass. ---, --- a, 325 N.E.2d 922, 924 (1975); Pollack v. Kelly, --- Mass. ---, --- - --- b, 362 N.E.2d 525 (1977).
Appeal dismissed with double costs.
1 John J. Brooksbank.
2 The case was entered on September 5, 1972, and the trial was held on June 18, 1975.
3 In pertinent part Mass.R.Civ.P. 59(a) provides: ...
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