Koffman v. Beserra

Wait, J.

The decree which the plaintiff, by his appeal, asks this court to reverse, was entered by the Superior Court after a hearing upon a master’s report. The defendant took exceptions to certain parts of the report and filed a motion to recommit. The master found, and reported as fact, that a certain structure on the defendant’s land was a single garage for six motor vehicles. All the evidence on which he based his findings was not reported. Uncontradicted facts, however, were set forth which the judge, at the hearing, decided required a different finding. He sustained the defendant’s exception and ordered that the finding, that there was but one garage, be struck from the report because it was not justified by the evidence and was inconsistent with it. He denied the motion to recommit and confirmed the report as amended. Thereupon, he found that there were two garages, each for three cars, upon the defendant’s. land; and since, confessedly, if that was so, the plaintiff could not maintain his bill, ordered a decree that the bill be dismissed without costs. The denial of the motion to recommit, the confirmation of the report as amended, and the order for a final decree were contained in a paper marked “Findings and Decision,” filed by the judge on February 9, 1927. *169 No separate decree confirming the report appears. No appeal was claimed from this order. The final decree, indorsed by the judge for entry, was filed on February 16,1927. The plaintiff filed his claim of appeal from the final decree on February 21, 1927.

No error of law appears.

Ordinarily where all the evidence is not reported, a master’s findings of fact are final. Jacobs v. Anderson, 244 Mass. 125 . Glover v. Waltham Laundry Co. 235 Mass. 330, 334 . Crane v. Brooks, 189 Mass. 228 . But if from the facts reported it appears that any of the findings is not supported in law, or is incorrect in the judgment of the trial court, the findings may be modified or set aside. Danforth v. Chandler, 237 Mass. 518, 522 . If satisfied that on the report, as amended, it has all the material facts before it, the trial court may make such findings of fact as it deems proper and may render such decision as the law and the facts require. Caines v. Ball, 248 Mass. 368, 372 , and cases cited. The same principles govern this court on an appeal. Curran v. Magee, 244 Mass. 1, 5 . Forman v. Gadouas, 247 Mass. 207, 210 , and cases there cited.

We have before us only an appeal from the final decree dismissing the bill. Since no appeal was taken from the confirmation of the amended report, we have no findings of fact to consider except such as are set out in the report as confirmed. That report is the only evidence now in the case. No inconsistent or unwarranted facts appear. The evidence supports the decree.

If, however, the question which was before the trial judge were before us, we should reach the same determinations of fact and law to which he came. There may be more than one garage under a single roof and within four outer walls. It is unnecessary to point out all which may discriminate between the existence of one or of more than one. We cannot say that the aldermen of New Bedford or the judge of the Superior Court were wrong in their decision. We agree with them that here there was more than one garage.

Decree affirmed.