Hollis v. City of Lynn, 237 Mass. 135

237 Mass. 135 | Mass. | 1921

Braley, J.

The petitioners are taxpayers in the defendant city, and having applied to the assessors for an abatement of taxes levied in 1918 on their respective lands, which was refused, they appealed under St. 1909, c. 490, Part I, § 77, to the Superior Court where under § 79, the cases were referred to a commissioner “to hear the parties and report the facts, together with such portions of the evidence as either party may request.” Upon the coming in of the report, a trial was had to the court sitting without a jury, and, the petitioners having prevailed, the cases are here on the respondent’s exceptions to the refusal of the judge to give the third, fourth, fifth, sixth, seventh and tenth requests, and to the manner in which he dealt with the commissioner’s finding “that the assessors were improperly influenced by events connected with their election.” The evidence upon which the commissioner rested his findings is not reported, and, his report having been admitted in evidence without any objection by the respondent, is made by statute “prima facie evidence of the facts therein found.” National Bank of Commerce v. New Bedford, 175 Mass. 257. It being the only evidence, the question is whether the report warranted the judge in finding the valuations to have been excessive and that the petitioners were severally entitled to an abatement as found by the commissioner.

Independently of the commissioner’s finding that the assessors were improperly influenced in making the increase in valuation over the valuation of the previous year by certain political events connected with their election, which finding the judge expressly disregarded, there is an explicit finding of fair cash value, which cannot be set aside as matter of law. National Bank of Commerce v. New Bedford, supra. The excess over the fair cash value also appears to have been found as a fact quite apart from any question of motive actuating the assessors. And there is no evidence warranting a finding by the judge, that the fair cash value of the parcels of land in question, or the excess of the fair cash value, differed from the amounts stated by the commissioner. It is contended by the respondent, that the commissioner’s conclusions must have been largely and to an indeterminate degree based upon his previous finding that the assessors were subjected to political influence, and . as the report does not disclose the weight which he gave to this evidence, the petitioners have failed to sustain the burden of proof. But these objections are insufficient to overcome the probative effect of the report. Page v. Melrose, 186 Mass. 361. Atlantic Maritime Co. v. Gloucester, 214 Mass. 348. It was proper for the judge to draw inference from the statements in the report which he deemed relevant and admissible. Beers v. Wardwell, 198 Mass. 236. And his findings in the absence of any error of law are conclusive. American Malting Co. v. Souther Brewing Co. 194 Mass. 89.

The respondent also cannot justly complain of the ruling, that the commissioner’s findings of political influence were irrelevant because the validity of the assessments were not in issue. The entire report as we have said had been admitted without objection, and, without passing upon the question of admissibility, it is settled that where evidence otherwise inadmissible goes in without objection the question of admissibility is not open. The party claiming to be aggrieved must either except, or move that the testimony alleged to be incompetent should be stricken out. Walkup v. Pickering, 176 Mass. 174. Jaquith v. Morrill, 204 Mass. 181,189. See Bradford v. Eastman, 229 Mass. 499, 501,

The respondent for the reasons stated having failed to show reversible error the exceptions in each case should be overruled.

So ordered.