
    No. 2901
    Northern Middlesex, ss.
    BRANDOLINO v. CARRIG
    (John Finelli)
    (Arthur E. Bean, Joseph Fine, Abraham I. Fine)
    From the Second District Court of Eastern Middlesex
    Duane, J.
    Argued May 19, 1941
    Opinion Filed July 14, 1941
   JONES, P. J.

(Wilson, & Henchey, JJ.)—The report in this case is not free from ambiguity in the following respects:

After the trial, as appears by the report, evidence was in' traduced tending to show that a contractor had entered into a contract whereby the contractor was to dig cellars and build homes thereon, seven in number, for the defendant.

There was evidence also tending to show that the' contractor in digging the cellars thre.w the dirt excavated on the plaintiff’s land causing his damage.

In the rulings made by the court, it is stated that, “there was evidence tending to show that the plaintiff is entitled to recover and the court so finds”; and a request of plaintiff is re' fused “for the reason that there is evidence tending to show that the trespass and injury to plaintiff’s land was done by de' fendant, his agents or servants and the court so finds”; and a further similar finding as a fact that “defendant, his servants or agents committed a trespass and did substantial damage to plaintiff’s property.”

Who these servants or agents may be is not found and the only evidence regarding person or persons of such character is the evidence relating to a contractor who is acting under agree' ment.

The report in this case is therefore recommitted to the trial judge under the provisions of Rule XXVIII of the Rules of the District Courts, on page 29, which provides that the Appellate Division “may at any time recommit the same (the report) for amplification, correction, or other amendment,” and we now exercise that authority by calling for further facts in the follow' ing respects:

1, Does the court find as a fact that the “written agree' ment” between the defendant and the contractor, (referred to on page one of the report), was actually made between the parties and the work of building the cellars and the throwing of the dirt on the plaintiff’s land was the work of the contractor of that of the defendant.

2. Who did the damage complained of?  