218 Mass. 495 | Mass. | 1914
By the decision in Browne v. Fairhall, 213 Mass. 290, when the case was first before this court on the report of the presiding judge, after a verdict for the plaintiff at a trial on the merits, judgment was ordered for the defendant on the ground that performance of the contract for breach of which the action was brought had been rendered impossible by the death of the testator. It is to be assumed that the order was followed, and thereupon the plaintiff seasonably brought this petition under R. L. c. 193, § 22, for a writ of review to vacate the judgment to enable him to present evidence at a new trial, that by the laws of the State of New York, where the petition alleges the contract to have been made and where it was to be performed, the cause of action survived. The respondent having answered to the merits admitting the allegations of fact in the petition, but claiming that they were insufficient to authorize a writ of review, the trial judge
The report in the former case formed no part of the record, and, while the petitioner’s affidavit is sufficient to prove facts
But, even if the second affidavit is treated as evidence before the trial judge and the report is considered as incorporated in the appeal, we do not understand that upon the facts appearing in the report the construction of the contract adopted in Browne v. Fairhall, 213 Mass. 290, is essentially at variance with the foreign law invoked by the petitioner. Dexter v. Norton, 47 N. Y. 62. Lorillard v. Clyde, 142 N. Y. 456, 462. Dolan v. Rodgers, 149 N. Y. 489, 491. Buffalo & Lancaster Land Co. v. Bellevue Land & Improvement Co. 165 N. Y. 247, 254.
Order dismissing petition affirmed.
The case was submitted on briefs.
Crosby, J.