Petersen v. Frye

Wilkins, J.

This is an action of contract by a real estate broker to recover a commission. The District Court judge found for the defendant, but the Appellate Division vacated that finding and ordered the entry of a finding for the plaintiff. The “finding, decision and order” of the Appellate Division was filed with the clerk of the District Court on June 27, 1946. On July 5 the defendant appealed. On July 13 the defendant filed an, “order for preparation of estimate of cost of appeal,” the body of which read, “Now comes the defendant in the above entitled action and orders *728 an estimate of the cost of preparation of appeal to the Supreme Court.” The Appellate Division allowed the plaintiff’s motion to dismiss the appeal for failure to comply with G. L. (Ter. Ed.) c. 231, § 135, as amended by St. 1941, c. 187, § 1, and affirmed the decision from which the appeal was taken. The defendant appealed. The ruling of the Appellate Division was right. The statute requires that the appealing party shall give to the clerk, “within ten days after the case becomes ripe for final preparation and printing of the record for the full court, an order in writing for the preparation of . . . papers ... for transmission to the full court of the supreme judicial court.” This was not done by the defendant, who merely ordered the “preparation of [an] estimate.” The case is indistinguishable from Cherry v. Auger, 300 Mass. 367 . The defendant’s failure to comply with the statutory requirements was not cured by his payment of the amount of the estimate on August 10, one month and five days after the case became “ripe for final preparation and printing of the record.” In Bass River Savings Bank v. Nickerson, 302 Mass. 235 , such payment was made within ten days after the case thus became ripe.

Order of Appellate Division affirmed.