Endicott-Johnson Co. v. Hurwitz

• Decision Date: 14 November 1933
• Citation: 284 Mass. 378,187 N.E. 759
• Parties: ENDICOTT-JOHNSON CO. v. HURWITZ et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 378

187 N.E. 759

ENDICOTT-JOHNSON CO.

v.HURWITZ et al.

Supreme Judicial Court of Massachusetts, Worcester.

Nov. 14, 1933.

Appeal from Central District Court, Appellate Division; H. H. Hartwell, Special Justice.

Action of contract by the Endicott-Johnson Company against Samuel Hurwitz on open account, wherein Maurice Jaffee, as assignee for the benefit of creditors of principal defendant, was summoned as trustee. From a judgment of the Appellate Division of the Central District Court, on trial judge's report, requiring trustee to answer certain interrogatories propounded by plaintiff, the trustee appeals.

Appeal dismissed.

S. H. Jaffee, of Worcester, for appellant.

J. Wasserman and H. Klein, both of Boston, for appellee.

CROSBY, Justice.

In this action of contract the plaintiff seeks to recover the sum of $772.87 for goods sold and delivered to the defendant. The action was commenced by a trustee writ in which one Maurice Jaffee, as assignee for the benefit of creditors of the principal defendant, was summoned as trustee. The defendant filed an answer, and the trustee answered ‘no funds.’ Thereafter the plaintiff filed interrogatories to the trustee and to the defendant. The defendant was defaulted for failure to answer. The trustee answered the first nineteen of twenty-three interrogatories propounded to him, the answers in substance being that the defendant for the benefit of his creditors made an assignment to the trustee, under which he took possession of the defendant's assets and sold them at auction for $1,125. The four remaining interrogatories the trustee declined to answer on advice of counsel on the ground that they were immaterial. The judge allowed the plaintiff's motion that the trustee make further answer to these interrogatories. Thereafter the trustee filed two motions, one for a rehearing upon the plaintiff's motion for further answers, and also a motion that the order of the court be stayed until a rehearing was had on the plaintiff's motion for further answers. The latter motion was allowed, and there was a hearing on the former on June 22, 1932. On July 22, 1932, the motion for further answers to interrogatories was denied. As the plaintiff claimed to be aggrieved by the rulings and refusals to rule, the trial judge reported the case to the Appellate Division. The latter found that there was prejudicial error in the refusal of the trial court to allow the plaintiff's motion for further answers to interrogatories twenty-one and twenty-two, and ordered the case remanded to the trial court for appropriate action.

G. L. (Ter. Ed.) c. 231, § 109, provides in part as follows: ‘An appeal to the supreme judicial court shall lie from the final decision of the appellate division of any district court. * * *’ It thus appears that an appeal will lie only ‘from the final decision of the appellate division.’ Accordingly it was held in Real Property Co., Inc., v. Pitt, 230 Mass. 526, 120 N. E. 141, that the final decision of the Appellate Division of the Municipal Court of the City of Boston under St. 1912, c. 649, § 9, which is now embodied in G. L. (Ter. Ed.) c. 231, § 109, ‘means a decision which leaves nothing more open to dispute...