Opinion
June 9, 1959.
John W. Kickham, for the plaintiff.
Paul V. Salter, for the defendant.
Order of Appellate Division affirmed. The single question at the trial was whether an oral contract for the purchase of pigs from the plaintiff was for $4,900, as the defendant contended, which was admittedly paid upon delivery of the animals, or whether the contract was for a higher price, as the plaintiff contended, leaving a balance due. The judge adopted the plaintiff's version and found for him. The defendant filed a motion for a new trial which was denied on April 15, 1958. He also filed a draft report which was dismissed on May 22, 1958. The defendant then brought the present petition to establish his draft report, and has appealed from an order of the Appellate Division dismissing his petition. In the first place, the denial of his motion for a new trial does not appear to raise any issues of law or of abuse of discretion on the part of the trial judge and so is not a proper subject of report to the Appellate Division. See Bartley v. Phillips, 317 Mass. 35, 42-43; Hartmann v. Boston Herald-Traveler Corp. 323 Mass. 56, 60-61. Secondly, the defendant has mistaken his remedy. He was entitled to a disposition of the questions of law involved in the dismissal of his report by a report to the Appellate Division for a review of that dismissal, and not by a petition to establish a report of alleged errors in rulings made at the trial. Gallagher v. Atkins, 305 Mass. 261, 264. Haines Corp. v. Winthrop Square Cafe, Inc. 335 Mass. 152.