
    
      Municipal Court of the City of Boston
    
    No. T-21756
    PEERLESS MACHINERY CO. v. WILLIAM HERBITS, TRUSTEE
    Argued: April 2, 1971.
    Decided: April 7, 1971.
    
      Present: Lewiton, J. (Presiding), Morrissey, Glynn, JJ.
    Case tried to
   Morrissey, J.

This is a petition to establish a report. The original cause of action was an action in contract and tort. The trial judge found for the plaintiff in the sum of $8,286.47.

A draft report and copy were seasonably filed by the defendant (the present petitioner). After a hearing, the trial judge ordered an amended draft report to be filed. The amended draft was seasonably filed as ordered. After a hearing on the amended draft report the trial judge refused to sign the same, but signed and filed a report of his own.

Louis A. Mazey of Brookline for the Petitioner.

John P.Morgan of Boston for the Respondent.

When two successive draft reports are presented, and not allowed, the remedy of the aggrieved party is by way of petition to establish the first draft report, and not the second one. Weinberg v. Leyton School of Dental Lab. Tech., 6 Mass. App. Dec. 89. Williams v. Shagoury, 33 Mass. App. Dec. 182.

This petition must be denied for the further reason that the amended draft report does not contain the statement that is a prerequisite to all draft reports, namely:

“This report contains all of the evidence material to the questions reported”.

Perry v. Hanover, 314 Mass. 167, 169. Commonwealth v. McIntosh, 259 Mass. 388, 391. Morganti v. Casey, 311 Mass. 46, 49. Handrahan v. No. Main St. Garage, Inc., 312 Mass. 699. Keeney v. Ciborowski, 304 Mass. 371, 374. Cincevich v. Patronski, 304 Mass. 679. Rule 31, Rules of the Municipal Court of the City of Boston, and Draft Report Model in Rule Book, page 45.

Petition to establish report denied.  