
    Lillian Malkin Goldstein vs. Harry Marks & others.
    July 26, 1956.
    
      Edward M. Dangel, {Leo E. Sherry & Marvin N. Getter with him,) for the plaintiff.
    
      Ralph Marks, {Marcus L. Sherin & John C. Johnston with him,) for the defendants.
   Interlocutory decree affirmed. Exceptions overruled. Final decree affirmed with costs of the appeal. The plaintiff appeals from an interlocutory decree denying a motion to amend her bill in equity by filing a substitute bill, after demurrers of the defendants had been sustained and leave granted to move to amend, and from a final decree dismissing the bill. The judge found after hearing that “in matters of form, at least,” the proposed amendment was“not such as to warrant the same being made a part of the papers and files of the court” (see Massachusetts Gasoline & Oil Co. v. Go-Gas Co. 267 Mass. 122,126), denied thirteen requests for rulings relating to the sufficiency of allegations contained therein, and granted a request for a ruling that “Having exercised its discretion in favor of the filing of an amendment, the court's sole function in passing upon plaintiff’s motion is to determine whether, as a matter of law, plaintiff’s substitute bill of complaint is permissible and appropriate,” as modified by the insertion of the words “as matter of fact and” after the word “whether.” The plaintiff excepted to the denial of her motion to amend, the denial of her requests, the ruling modifying the request above quoted, and the judge’s finding. These exceptions are here with the appeals. The allowance of a motion to amend is permissive and discretionary. Keljikian v. Star Brewing Co. 303 Mass. 53, 56. The leave to move to amend did not preclude the judge from determining whether the proposed amendment ought to be allowed. Trudel v. Gagne, 328 Mass. 464. There was no abuse of discretion in its denial and no reversible error in the finding and rulings.  