City of Boston v. Santosuosso

Citation298 Mass. 175,10 N.E.2d 271
Decision Date17 September 1937
CourtUnited States State Supreme Judicial Court of Massachusetts


Report from Superior Court, Suffolk County; Williams, Judge.

Suit by the City of Boston against Joseph Santosuosso and another. Defendants' demurrers were overruled, and the pleas were adjudged insufficient by interlocutory decrees, and at the request of all parties the questions raised by such demurrers and pleas were reported to the Supreme Court.

Decrees affirmed.E. F. McClennen, Sp. Asst. Corp. Counsel, and H. E. Foley, Corp. Counsel, both of Boston, for plaintiff.

W. P. Murray, of Boston, for defendant Curley.

F. L. Simpson, of Boston, for defendant Santosuosso.

PIERCE, Justice.

After the defendants' demurrers were overruled and the pleas were adjudged insufficient by interlocutory decrees in the Superior Court, the sitting judge, at the request of all parties, reported the questions raised by the said demurrers and pleas to this court. The bill of complaint, demurrers, pleas and the decrees thereon are incorporated in this report.

The facts alleged in the bill of complaint, which are admitted for the purposes of this suit, are in substance as follows: The defendant James M. Curley was the duly elected and qualified mayor of the city of Boston from January, 1930, until January, 1934. While such mayor, in November, 1933, he entered into an unlawful agreement with the defendant Joseph Santosuosso and a representative of Ernest W. Brown, Inc., to the effect that, by reason of his power and influence as mayor of the city of Boston, he would bring it about that certain claims then in litigation between the said Ernest W. Brown, Inc. and the city of Boston be settled by the payment by the city of the sum of $85,000 to Santosuosso, with the agreement between said three that a large part of the proceeds so received would be paid over by Santosuosso to Curley for his own use. About the end of November, 1933, said three parties put into effect, carried out and completed this scheme. The money ($30,000 or $40,000) was paid over and received by Curley, and thereby ‘the respondents became in their own wrong and remain trustees for the City of Boston of approximately $50,000.’

In more particular detail the bill of complaint discloses that in January, 1932, Ernest W. Brown, Inc., brought two actionsin the Superior Court for Suffolk County against the city of Boston, in the name of General Equipment Corporation, for damages to certain premises on Commonwealth Avenue in said city; that these actions were tried together in June, 1933, before a judge and jury, and a verdict was found therein, subject to leave reserved, for the General Equipment Corporation; that pursuant to leave reserved, the judge set aside the verdict and entered a verdict for the city on or about June 24, 1933, ‘on the ground that there was no liability on the part of the city’; that the defendant Santosuosso was counsel for Ernest W. Brown, Ins., in said proceedings; that ‘There was in fact no liability on the part of the city of Boston for the damages sought in said two proceedings and the said Ernest W. Brown, Inc., was ready to settle said proceedings against the city for $20,000, if paid by the city and their representative had so informed Joseph Santosuosso; that ‘After the agreement upon the scheme aforesaid of the respondents and said representative of Ernest W. Brown, Inc., and for the purpose of receiving to himself the money aforesaid the respondent James M. Curley as mayor approved and brought about the settlement of said suits by causing to be paid to said Joseph Santosuosso from the moneys of the city of Boston the sum of $85,000 and said Santosuosso, in pursuance of said scheme, received said $85,000 and with the assistance of said representative of Ernest W. Brown, Inc., received and retained the sum of $50,000 of which he gave to said James M. Curley a large part, approximately $30,000, with the knowledge and approval of said representative of * * * Ernest W. Brown, Inc.; that ‘the said Santosuosso out of said $85,000 gave or caused to be given to said Ernest W. Brown, Inc., the sum of $20,000 and to the said representative of Ernest W. Brown, Inc., the sum of $15,000 for compensation’; that ‘the said Joseph Santosuosso also gave to said representative the further sum of $1,000’; that both Santosuosso and Curley ‘knew at the time of the receipt of said approximately $50,000 out of the $85,000 remaining after the payment of said $20,000 to * * * Ernest W. Brown, Inc., and said $15,000 to its representative, that said $50,000 was the money of and still in equity and good conscience belonged to the city of Boston and that they * * * had no right to receive as their own said $50,000 or any part thereof and that they were receiving it and held it and continued to hold it in trust for the city of Boston and that it had come into their hands upon said trust wholly by reason of the influence of said James M Curley as mayor of the city of Boston exercised by him in pursuance of said scheme in violation of the trust which he owed to said city as the mayor thereof’; that Santosuosso and Curley ‘received said $50,000 without any consideration therefor and this fact was well known at the time to both of them.’ The bill of complaint states taht the complainant is ignorant whether said $50,000 in money of the city of Boston received by the respondents is still held by them in the form in which it was received or whether it has been converted into other proceeds now held by them as trustees upon the trust upon which the money was originally received as aforesaid.’

The defendant Santosuosso demurred to the bill on the grounds that no trust was set out in the bill, that there was no jurisdiction in equity, and that the plaintiff had a plain, complete and adequate remedy at law. In his plea he sets forth that the actions against the city in the name of General Equipment Corporation were for the same cause of action; that they were tried together; that a verdict was rendered for the General Equipment Corporation by a jury in the sum of $129,646.57, with interest thereon; that thereafter a judgment was entered in the Superior Court in one of said actions in the amount of $85,000 and a judgment of ‘neither party in the other action; that an execution was issued upon the aforesaid judgment against the city of Boston, and the sum of $85,000 was paid by the city in satisfaction of said judgment; that execution was returned satisfied; that said judgment is now, and since...

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