Green v. Dolan
| Decision Date | 30 October 1975 |
| Parties | Errol GREEN v. William DOLAN et al. 1 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Herbert Murphy, Springfield, for plaintiff.
Philip A. Beattie, Westfield, for William Dolan.
Mitchell J. Sikora, Jr., Asst. Atty. Gen., for the Justices of the Superior Court.
Before TAURO, C.J., and REARDON, QUIRICO and BRAUCHER, JJ.
RESCRIPT.
The defendant William Dolan moved for a physical examination under Mass.R.Civ.P. 35, 365 Mass. --- (1974), of the plaintiff without the presence of counsel. The motion was allowed. The plaintiff then filed a petition for relief as a class action under G.L. c. 211, § 3, to establish his right to have counsel present at the examination. The single justice in the exercise of his discretion dismissed the petition. No abuse of discretion is shown here. We have previously stated that we are extremely reluctant to invoke G.L. c. 211, § 3, in matters of this nature which do not involve both the protection of a substantive right and the absence of an alternative, effective remedy. Costarelli v. Municipal Court of City of Boston, --- Mass., --- - --- a, 323 N.E.2d 859 (1975); Whitmarsh v. Commonwealth, --- Mass. --- - --- b, 316 N.E.2d 610 (1974); Enbinder v. Commonwealth, 361 Mass. 871, ---, 281 N.E.2d 863 (1972).
Judgment affirmed.
1 The Superior Court.
a. Mass.Adv.Sh. (1975) 481, 489--490.
b. Mass.Adv.Sh. (1974) 1403, 1405--1406.
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Soja v. T. P. Sampson Co.
...substantive rights in the absence of an alternative, effective remedy. Commonwealth v. Frado, supra. Green v. Dolan, 368 Mass. --- d, 336 N.E.2d 908 (1975). Healy v. First Dist. Court of Bristol, 367 Mass. 909, 327 N.E.2d 894 This case does not present such a situation. See generally Osserm......