See Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). See also Mollahan v. McGrath, 357 Mass. 229, 232 (1970), quoting from Frati v. Jannini, 226 Mass. 430, 431 (1917) ("When a case is heard on an agreement of the parties as to the evidence, `the agreement merely takes the place of the evidence which otherwise would be introduced in the usual way, and either the jury renders a general verdict or the judge makes a general finding founded upon that'"). Moreover, "[t]he question on appeal from a decision on facts agreed as evidence is whether on all the evidence the decision was warranted."
Benmosche herself, in addition to stipulating that she did not possess the qualifications required by law to be a registered physician, and did not possess an ECFMG certificate, stipulated to what Dr. Silva and the UCE registrar would have testified if they had been called. That stipulated testimony is legally equivalent to the live testimony of the two witnesses, and satisfies all rights of cross-examination. See Sac Fox Indians of the Miss, in Iowa v. Sac Fox Indians of the Miss. in Okla., 220 U.S. 481, 488-489 (1910) ("evidence, hearsay or ex parte . . . may be admitted by consent . . . and then should be given whatever weight it would have but for technical rules"); Embers of Salisbury, Inc., supra at 531 (treating stipulated testimony presented to administrative board as equivalent to live testimony); Mollahan v. McGrath, 357 Mass. 229, 232 (1970), quoting Frati v. Jannini, 226 Mass. 430, 431 (1917) ("When a case is heard on an agreement of the parties as to the evidence, `the agreement merely takes the place of the evidence which otherwise would be introduced in the usual way . . .'"); Lowell Coop. Bank v. Sheridan, 284 Mass. 594, 598 (1933) ("stipulation of the parties that the treasurer of the plaintiff if present would testify to [certain facts] is in substance an agreement as to the evidence to be considered by the court"). Accord Southdale Center, Inc. v. Lewis, 260 Minn. 430, 434 (1961) (stipulated testimony "waives the adverse party's right to cross-examine that particular witness").
The statement, however, does not appear to have been more than an agreement concerning evidence which the judge could consider, rather than a "case stated" of all pertinent facts from which the judge might draw inferences. See Mollahan v. McGrath, 357 Mass. 229, 232 (1970). Compare the statements considered in Quintin Vespa Co. v. Construction Serv. Co., 343 Mass. 547, 548, 551-552 (1962), and Saphier v. Devonshire St. Fund, Inc., 352 Mass. 683, 684 (1967).
The judge ruled that the landlord was operating an illegal boarding house and entered a finding for the tenant. Actions are commonly submitted, in lieu of evidence adduced at trial, on a case stated or agreement as to all material facts upon which the rights of the parties are to be determined, see Rogers v. Attorney General, 347 Mass. 126, 130 (1964); Scaccia v.Boston Elev. Ry., 308 Mass. 310, 312-313 (1941); on statements of agreed facts or evidence, see Mollahan v. McGrath, 357 Mass. 229, 232 (1970); Lapp Insulator Co. v. Boston MaineRR, 330 Mass. 205, 206 (1953); or on stipulations or undisputed statements of counsel. Zottu v. Electronic Heating Corp., 334 Mass. 442, 446 (1956); Harper v. Harper, 329 Mass. 85, 88 (1952).
An evidentiary hearing should have been held. Actions are commonly submitted, in lieu of evidence adduced at trial, on a case stated or agreement as to all material facts upon which the rights of the parties are to be determined, see Rogers v. Attorney General, 347 Mass. 126, 130 (1964); Scaccia v. Boston Elev. Rwy. Co. 308 Mass. 310, 313 (1941); on statements of agreed facts or evidence, see Mollahan v. McGrath, 357 Mass. 229, 232 (1970); Lapp Insulator Co. v. Boston Maine RR, 330 Mass. 205, 206 (1953); or on stipulations or undisputed statements of counsel. Zottu v. Electronic Heating Corp., 334 Mass. 442, 446 (1956); Harper v. Harper, 329 Mass. 85, 88 (1952).