250 Mass. 471 | Mass. | 1925
The petitioner Herman by a petition filed April 27,1922," alleging entry “ on or about May first, 1921,” sought to have damages awarded for taking of realty for the widening of Second Street in New Bedford, March 11, 1921. The petitioner Nicklas was the holder of leasehold rights under the petitioner Herman, who was seised of the premises in fee, and Nicklas also owned the building on said leasehold estate. Under St. 1918, c. 257, § 187, subsections 23-31,
At the trial, the petitioner introduced as a part of his case the testimony of the city clerk that the taking of the realty was by order of March 11, 1921, and that the entry for the purpose of construction was made April 2,1921. At the conclusion of the petitioner’s case, the respondent filed a motion in the Herman case to direct a verdict in the following language: “ The respondent requests the court to direct the jury to return verdict for the defendant for the petitioner failed to file his petition within the time allowed by G. L. c. 79, § 16, it appearing that 'entry’ was made April 1, 1921, and petition was filed April 27, 1922.” This motion was considered by the judge after the introduction of the respondent’s evidence as to value and at the conclusion of the presentation of the respondent’s case, and was thereupon by said judge denied. The respondent duly filed a motion that the verdict be set aside and a new trial ordered for the following reasons:
“1. That the verdict is against the evidence and the weight of the evidence.
“ 2. That the verdict is against the law.
'' 3. That the damages as found by the jury are excessive.”
After a hearing the judge made the following order: “ The respondent’s motion for a new trial is overruled, except upon the ground that the damages are excessive, and upon that
As the term “ civil actions ” includes petitions for damages sustained in condemnation proceedings, Howard v. Proprietors of Locks & Canals, 12 Cush. 259, 262, 263, it is plain the judge had authority under the provisions of G. L. c. 231, § 127, to grant a new trial “ for any cause for which a new trial may by law be granted ”; but11A verdict shall not be set aside as excessive until the prevailing party has first been given an opportunity to remit so much thereof as the court adjudges is excessive.”
The finding of the judge as to the entire damage to the estate of the petitioners is supported by the reported testimony of witnesses, and is not open to the charge of the respondent that it is “ an amount not calculated and determined upon evidence introduced in the case.” If the entire damage to the estate be assumed to be correct, it is not contended that the apportionment between the estates as a fact does not accurately represent the damage to each estate. The petitioners assenting thereto, the respondent cannot question the authority Of the judge to make an apportionment, especially where, as here, there is no evidence that the sum allotted is greater than the damage to each estate considered apart from the other estate. G. L. c. 79, §§ 22, 29. Edmands v. Boston, 108 Mass. 535, 547. Boston v. Robbins, 126 Mass. 384. Providence, Fall River & Newport Steamboat Co. v. Fall River, 187 Mass. 45, 50. Cornell-Andrews Smelting Co. v. Boston & Providence Railroad, 215 Mass. 381, 389.
In the case of Herman the motion to dismiss should have
It results that the exceptions taken by the respondent in the case of Herman must be sustained. And in the case of Nicklas they are overruled.