Goldberg v. Rak

In the matter of petition to establish report. The plaintiffs seasonably filed a draft report following a finding for the defendant. As a result of a hearing on that draft report before the trial judge, the plaintiffs filed a second report called an “amended report”. After this the trial judge signed and filed his own draft report. We will refer to this report as report No. 3. It contained photostatic copies of certain exhibits used at the trial. These documents were not attached to reports No. 1 and No. 2.

This petition is filed not to establish the *198first but the second report (the amended report) .

Bolster, C. J., who had sponsored and fostered the growth of the Appellate Division of this Court, said in Mitchell v. Boston Elevated Railway, 47 App. Div. 11 (where the facts were somewhat similar to the instant case in that there were two reports and the plaintiff sought to establish report No. 2) : “There is no provision in the rules for such procedure. Those rules are modeled upon the established methods for proof of bills of exceptions. The underlying proposition of every such petition is that within the time allowed the petitioner filed a draft stating with substantial truth the exception saved, with its supporting evidence, verified by oath, in such form as the judge ought to have allowed. If disallowed, it is that draft which is to be set up by petition.” See Allen v. Goodman, 28 App. Div. 327.

In effect when report No. 3 was signed and filed by the trial judge, reports No. 1 and No. 2 were disallowed. We cannot establish report No. 2 as requested by petitioner. Graustein, Petr., 304 Mass. 679; Thorndike, Petr., 257 Mass. 409, 410; Moneyweight Scale Co. Petr., 225 Mass. 473, 476; Hinchley v. Boston Elevated Railway Co., 53 App. Div. 370.

Petition denied: