
    JORDAN MARSH COMPANY v. ARTHUR MALOOF
    Suffolk, ss. Municipal Court of the City of Boston
    Argued June 11, 1945
    Opinion filed June 23, 1945.
    Present: Zottoli, Allow & Donovan, JJ.
    
    
      A. G. Tierney, for the Plaintiff.
    
      F. S. Maloof & C. M. Lavers, for the Defendant.
   In the matter of Petition to Establish Report.

Zottoli, J.

There are several reasons why this petition should be denied.

1. The defendant has failed to appear before the Appellate Division at the appointed time and place for hearing his petition to prove the alleged report. This is adequate cause for the denial of his petition, especially in view of the trial judge’s certificate on file with the papers in this case.

2. It is obvious from the record before us that this petition cannot be allowed because it lacks “the most vital and necessary allegation — that the draft report which it seeks to have set up contains a true recital of the facts occurring at the trial, so far as needed to make the requests for ruling of law intelligible and pertinent.” The situation the defendant finds himself in is not novel. The field was explored in the case of Mitsch v. McAuliffe & Tr., No. 97368 (1927) Municipal Court of the City of Boston, 25 A. D. 203.

3. It appears from, the certificate of the trial judge, properly filed on May 18, 1945, Patterson r. Ciborwski, 277 Mass. 260, 265, that the claim of report was disallowed for the reason that the draft report did “not conform to the facts; that it includes evidence not admitted at the trial, states facts not properly before the court, seeks to raise questions based on the exclusion of evidence when no claim of report therefor was filed in accordance with G. L. (Ter. Ed.) ch. 231, sec. 1.08, and for the further reason that time was given to amend the report so that it might conform to the Tacts and that said amended report” was .not “submitted” to the court “within the time allowed.” Under these circumstances it is clear that the trial judge was not required to adopt the draft report submitted to him, and properly disallowed.the claim of report. Kelly v. Foley, 284 Mass. 503, 509. Santosuosso v. Della Russo, 300 Mass. 247, 249.

4. Furthermore, it is hardly necessary to cite further authority to support the proposition that the defendant in his - petition to • establish his draft report should have set out the fact that the judgé, in disallowing the claim of report, filed a certificate setting forth his reasons for so doing.

Without further discussion, it is plain from what has been stated that this petition cannot be 'graiited.

The order therefore is Petition denied.  