
    Barron Beverage Company, Inc. & others vs. Alcoholic Beverages Control Commission.
    July 21, 1980.
    
      Thomas Miller Assistant Attorney General, for the defendant.
    
      Mark S. Furman for the plaintiffs.
   The Alcoholic Beverages Control Commission (commission) appeals from an order of a single justice designating the commission as the appellant under Mass.R.A.P. 16(i), 365 Mass. 863 (1974).

The Massachusetts Rules of Appellate Procedure place the burden of prosecuting an appeal and the initial costs of the appeal on the appellant. Rule 16(i) provides, as the normal rule of practice, that where both parties appeal the plaintiff in the court below shall be deemed the appellant. This rule of practice can be varied by agreement of the parties or by the court. Where, as here, the single justice could conclude that the primary party appealing the judgment is the defendant, it was proper for the single justice to designate that party as the appellant. The order of the single justice is especially appropriate in this action because the plaintiffs, even if successful on appeal, would not be able to recoup the cost of preparing the record appendix. Massachusetts Rule of Appellate Procedure 26(b), as amended, 378 Mass. 925 (1979), does not permit awarding of costs against an agency of the Commonwealth. Broadhurst v. Director of the Div. of Employment Security, 373 Mass. 720, 721-725 (1977).

Order of the single justice affirmed.  