Colabufalo v. Public Buildings Com'r of Newton
| Decision Date | 20 June 1957 |
| Citation | 143 N.E.2d 477,336 Mass. 205 |
| Parties | Anthony COLABUFALO v. PUBLIC BUILDINGS COMMISSIONER OF NEWTON and others. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John J. Grady, Boston, for petitioner.
John R. Carney, Jr., Boston (James H. Dixon, Boston, with him), for respondents.
Before WILKINS, C. J., and RONAN, WILLIAMS, WHITTEMORE and CUTTER, JJ.
The petitioner has appealed from an order dismissing his petition to adjudge in contempt the respondents DiCarlo Bros., Inc., and Lasell Realty Company (hereinafter called the respondents) on the ground that the question raised by the petition had become moot. The respondents present by bill of exceptions the contention that their motion to dismiss the petitioner's appeal was erroneously denied.
The contempt petition was ancillary to and was filed and docketed in the mandamus proceedings brought by the petitioner in 1953 which resulted in our decision reported as Colabufalo v. Public Buildings Commissioner of Newton, 332 Mass. 748, 127 N.E.2d 564. The mandamus proceedings determined that the respondents as, respectively, owner of part of, and occupant of, land at Langley Road in Newton could not justify a business use of the subject land in a residence zone as a nonconforming use. Pursuant to our decision, the Superior Court on July 18, 1955, rentered, after rescript, its original judgment reading 'Writ of Mandamus to issue commanding the respondent commissioner * * * to enforce the provisions of s. 573(a) of the zoning ordinance * * * as to all of the [subject] area * * *.'
The respondents had been joined in the mandamus proceedings on motion of the commissioner 'as the real parties respondent,' see G.L. (Ter.Ed.) c. 249, § 5, as amended, and took over the active defence of the case under a stipulation that agreements and findings would be binding upon the commissioner, 332 Mass. 748, 749, 127 N.E.2d 564.
The contempt proceedings were initiated by a 'petition for order to show cause' why the commissioner and the respondents should not be adjudged in contempt for failure 'to obey said judgment.' At the hearing on this petition on August 18, 1955, the proceedings as against the commissioner were dismissed by agreement of counsel in open court and the judge ordered as shown by the docket, On the same day there was entered a 'decree and order,' indorsed 'Filed by leave of court,' which provided 'that the respondents, DiCarlo Bors., Inc., and Lasell Realty Company, their officers and agents, be and they are hereby ordered to comply before October 1, 1955, with the zoning ordinances * * * with respect to the premises set forth in the judgment * * *.'
On September 21, 1955, the respondents moved for an extension of the compliance date to November 1, 1955, alleging that they had filed before the aldermen of the city a petition for a 'temporary variance' for the subject land for a six months' period 'to grant them time to relocate their business.' On September 30, 1955, the Superior Court entered a 'decree and order' directing compliance with the zoning ordinance on or before November 1, 1955, in the same terms as in the original order, and providing also that 'No further extensions of time for compliance with the said judgment are to be granted' (emphasis supplied).
On October 28, 1955, there was 'filed by leave of court and denied' a motion of the respondents which recited that the board of aldermen on October 17, 1955, had granted the petition for a variance for six months so that 'the respondents are not presently violating the zoning ordinances * * *' and praying 'that the time for complying with the final decree be extended to April 17, 1956.'
On November 10, 1955, the petitioner filed a petition to adjudge the respondents in contempt. It alleged that the 'petition for order to show cause why the respondents should not be adjudged in contempt of court for failing to comply with said judgment [after rescript]' had been allowed, recited the intervening proceedings and orders, alleged noncompliance, and prayed that the respondents be adjudged in contempt of the court 'for failing to comply with its orders and decrees' and that as punishment the respondents be ordered to pay some amount to the petitioner in view of his expenditures of over $850 to secure compliance.
On December 14, 1955, the Superior Court entered a 'finding and order' in which the judge stated as follows:
1. The Superior Court had jurisdiction to entertain the petitions which followed the judgment after rescript and to enter the several orders thereon. General Laws (Ter.Ed.) c. 40A, § 22, inserted by St.1954, c. 368, § 2, provides, 'The superior court shall have jurisdiction in equity to enforce the provisions of this chapter, and any ordinances or by-laws adopted thereunder * * *.' By virtue of the mandamus proceedings the power and obligation of the public buildings commissioner under the ordinance and the cases (Tranfaglia v. Building Commissioner of Winchester, 306 Mass. 495, 499, 28 N.E.2d 537, and cases cited; Caires v. Building Commissioner of Hingham, 323 Mass. 589, 83 N.E.2d 550) to enforce the ordinance had been invoked and determined. The principle underlying the cases which hold that affected citizens, initially and without resort to mandamus, may not themselves ask for enforcement was not applicable at this stage of the case. See O'Brien v. Turner, 255 Mass. 84, 150 N.E. 886; Old Colony Trust Co. v. Merchant Enterprises, Inc., 332 Mass. 484, 488, 126 N.E.2d 112, and cases cited. There was nothing in substance which required the form of a separate bill in equity brought by the commissioner against the respondents to subject them to an enforcing order. Each of the respondents as a 'real party' had, pursuant to the statute, G.L. (Ter.Ed.) c. 249, § 5, been a party to the mandamus proceedings. The adjudication was binding on each. Neither made objections to the form of the ancillary proceedings. If the fact that the judgment was not in form addressed to them left open any question of the existence of an outstanding obligation in the respondents to comply with the ordinance to the same extent as the commissioner had been ordered to enforce it, that was fully met by the order of the Superior Court directing their compliance.
2. The appeal was rightly taken and the motion to dismiss it was rightly denied.
Although the petition for contempt filed November 10, 1955, grew out of and was incident to the prior proceedings and was properly filed therein, it was a distinct proceeding. Root v. MacDonald, 260 Mass. 344, 354-365, 157 N.E. 684, 54 A.L.R. 1422, and cases cited. The sole question in that proceeding was whether the respondents had complied with the order of September 30, 1955, and the judgment in mandamus. Hamlin v. New York, New Haven & Hartford Railroad, 170 Mass. 548, 550, 49 N.E. 922. The order of December 14, 1955, if rightly based, finally disposed of the proceeding. Duff v. United States Trust Co., 327 Mass. 17, 21, 97 N.E.2d 189; Fairbanks v. Beard, 247 Mass. 8, 141 N.E. 590, 30 A.L.R. 698; Parker v. United States, 1 Cir., 153 F.2d 66, 69, 163 A.L.R. 379. There may be more than one final decree in a particular case. Vincent v. Plecker, 319 Mass. 560, 564-565, 67 N.E.2d 145.
It has been determined that an appeal, as in equity, will lie from a final decree on a petition to adjudge in...
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