Corman Realty, Inc. v. Rothstein

• Decision Date: 11 February 1976
• Citation: 4 Mass.App.Ct. 777,341 N.E.2d 292
• Parties: CORMAN REALTY, INC. v. Hyman ROTHSTEIN et al.
• Court: Appeals Court of Massachusetts

Page 292

341 N.E.2d 292

4 Mass.App.Ct. 777

CORMAN REALTY, INC.

v. Hyman ROTHSTEIN et al.

Appeals Court of Massachusetts, Suffolk.

Argued Nov. 18, 1975.

Decided Feb. 11, 1976.

Harold Stavisky, Boston, for defendants.

Sheldon Newman, Chelsea, for plaintiff.

Before ROSE, KEVILLE and GOODMAN, JJ.

RESCRIPT.

1. The defendants' contention based on G.L. c. 160, §§ 88 and 114, in their appeal from a judgment entered on August 15, 1974, in the Superior Court was not raised in the pleadings or (for all that appears) otherwise brought to the attention of the trial judge, and we therefore do not consider it. See Foster v. Everett, 334 Mass. 14, 18, 133 N.E.2d 480 (1956); Henchey v. Cox, 348 Mass. 742, 747, 205 N.E.2d 715 (1965); Milton v. Civil Serv. Commn., --- Mass. ---, --- - --- ^a, 312 N.E.2d 188 (1974). Nor do we subscribe to the defendants' assertion that the judge insufficiently defined the geographical extent of the plaintiff's easement, for we interpret the judgment, read in the context of the findings and rules underlying it, as a determination that the easement is coterminous with the Cary Avenue Extension in its entirely. The defendants make no suggestion in their brief that the evidence did not warrant such a determination. 2. The defendants' appeal from the court's order denying their motion to amend its findings, to make additional findings and to amend its judgment, filed after the entry of judgment (see Mass.R.Civ.P. 52(b), 365 Mass. --- (1974)), must fail because the record does not disclose what amendments were sought by the motion or what transpired at the hearing thereon. The defendants apparently made no effort to remedy those omissions by availing themselves of the procedure afforded by Mass.R.A.P. 8(c), 365 Mass. --- (1975). Therefore, the defendants have not sustained their burden of showing prejudicial error in the denial of the motion. See Ferris v. Turner, 320 Mass. 555, 558, 70 N.E.2d 715 (1947). Compare BERMINGHAM V. THOMAS, --- MASS.APP. --- ,326 N.E.2D 733 (1975)^B. 3. The defendants' appeal from the judge's findings, rulings and order for decree entered on May 30, 1974, is without standing. DeCanio v. School Comm. of Boston, 358 Mass. 116, 119, 260 N.E.2d 676 (1970), and cases cited. Cassani v. Planning Bd. of Hull,--- Mass.App. ---, --- ^c, 300 N.E.2d 746 (1973). 4. The appeal from the findings, rulings and order for decree is dismissed. The judgment and the order denying the motion to amend the judge's findings are affirmed....