
    
      Northern District
    
    No. 5680
    JOSEPH DIMUZIO, d/b/a v. JOSEPH MARINO, ET AL
    (Dec. 28, 1962)
    
      Present: Brooks, P. J., Eno & Parker, JJ.
    Case tried to Dewey, J. in the First District Court of Eastern Middlesex (Malden).
    No. 84 of 1962.
    Argued: ------------
    Decided: ------------
    Samuel Newman, of East Boston, for the Plaintiff.
    Daniel E. Jacobs, of Boston, for the Defendant.
   Parker, J.

On 20 March 1962 the defendant filed a request for a report with the court. On 23 March 1962 defendant’s counsel mailed a draft report to the clerk of the First District Court of Eastern Middlesex, and in the same mail, a copy of the report to the trial justice. One and one-half hours later on that day, he mailed a copy of the draft report to the adverse party.

The plaintiff filed a motion to dismiss the draft report on the grounds that the defendant had failed to comply with Rule 28 of the District Court Rules in that the draft report was not filed with the court “before” the copy was mailed to the trial justice and the adverse party. The plaintiff’s motion was allowed by the court and the defendant claimed to be aggrieved by the allowance of the motion, the court has reported the case.

The law controlling the question raised by this report is stated in the case of Famigletti v. Neviackas, 324 Mass. 70. The Report is to be dismissed.  