
    
      Southern District
    
    CHESTER RUDNICKI v. JOHN DeFRANCESCO and CARMELA DeFRANCESCO
   Sgarzi, /.

This action was brought by the plaintiff against the defendant, John DeFrancesco by writ entered June 28, 1932 to recover for the conversion of certain personal property. On October 19, 1954 Carmela DeFrancesco was added as a party defendant. A trial was had resulting in a finding for the defendants. The plaintiff filed a draft report and a hearing on the report was held on February 29, 1956. On the same day the plaintiff filed a motion for new trial, which motion was denied.

The plaintiff is aggrieved by the denial of tVs motion and the judge reports the matter to this Division.

The plaintiff contends that the motion should have been allowed and a new trial ordered for the purpose of disposing of another action No. 31980 which had been brought by the defendant John DeFrancesco against the plaintiff and which was pending at the time the motion was filed.

The plaintiff in that action however, filed a discontinuance on March 3, 195 6. Since that case had never been marked for trial, the plaintiff had a right to discontinue. Derick v. Taylor, 171 Mass. 444; Marsch v. S. N. E. R. R., 235 Mass. 304.

Furthermore it appears from the report that the issues raised in case No. 31980 were disposed of in a decree of the Superior Court entered after hearing a petition for declaratory judgment brought by the same plaintiff against the same defendant. Sadler v. Industrial Trust Co., 327 Mass. 10.

Counsel for the plaintiff contends that he was not aware of the existence of case No. 31980 at the time of the trial of this case since he did not represent this plaintiff at the time that action was brought. This circumstance cannot avail the plaintiff since he was at all times represented by counsel who filed an answer in his behalf and could have marked the case for trial at any time thereafter.

A motion for new trial is addressed to the discretion of the court and no exception lies to the proper exercise of this judicial discretion. Welsh v. Milton Water Co., 200 Mass. 409; Kinnear v. General Mills Inc., 308 Mass. 344.

We find no error of law in the denial of the plaintiff’s motion for new trial and the report is ordered dismissed.  