3. LANDLORD AND TENANT PAIRS COMMON STAIRWAY. 150(1)-RE- | Boston. It is plain that there was no ev- The rule that a person entitled to the use of an easement is required to keep it in the necessary repair does not apply to common stairways and hallways; the duty to repair resting upon the landlord. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 536; Dec. Dig. 150(1).] 4. LANDLORD AND TENANT 124(2)-PREMISES-INJURY TO STAIRWAY BY SUBLESSEE LESSEE'S LIABILITY. A lessee, subletting contrary to his lease, is not liable for damages to a common stairway by the sublessee, since such stairway is not a part of the demised premises. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 438; Dec. Dig. 124(2).] Appeal from Municipal Court of Boston, Appellate Division. Action by the Tremont Theater Amusement Company against Frank V. Bruno. Findings for plaintiff were vacated by the appellate division of the municipal court, and judgment ordered for defendant, and plaintiff appeals. Affirmed. Thos. J. Barry, of Boston, for appellant. Richard M. Walsh, of Boston, for appellee. CROSBY, J. On September 15, 1909, the plaintiff by a written lease, demised and let to the defendant for the term of four years and four months from February 1, 1910, the first floor above the street floor of the Tremont Theater building at 176 Tremont street in Boston, to be used as a barber shop. The lease contained the following clauses: "That the lessee will keep all and singular the premises in such repair, order and condition as the same are in at the commencement of the said term or may be put in during the continuance thereof, damage by fire or other unavoidable casualty only excepted." And that the lessee "will not assign said lease nor underlet the whole or any part of the said premises without first obtaining on each occasion consent in writing of the lessor. * * Also that at the expiration of the term of the lease the lessee will deliver up to the lessor the premises "in good repair, order and condition in all respects, damage by fire or unavoidable casualty excepted; and that during the said term the said premises shall not be overloaded, damaged or defaced." The record shows that the defendant, dur ing the term of his lease, sublet one of the rooms included in the lease to one Quigley; that afterwards, Quigley vacated the room and engaged one Welch to move therefrom a safe; that while the safe was being taken down the stairs the rope holding it broke, and the stairway, which was constructed of marble, was damaged. This action is brought to recover for the damage to the stairway. The plaintiff's declaration contains three counts: The first alleges negligence; the second and third are in contract, and allege a breach of the covenants in the lease. about seven feet wide. It is a common stair"The stairway damaged is of marble and way used by the defendant and the other tenants of the lessor overhead, and it is used also as an entrance to the second balcony of the Tremont Theater, which was run by the plaintiff. The stairway was the only means of reaching the second floor of the building on which were located the defendant's rooms.' It therefore appears that the stairway which was used by the defendant and other tenants of the building was a common stairway. While it was the only means of reaching the rooms leased by the defendant on the second floor, it was not the less a common stairway, and in the absence of any grant or contract to the contrary, the possession and control thereof remained in the lessor. As was said by Loring, J., in the recent case of Flanagan v. Welch, 220 Mass. 186, 191, 107 N. E. 979, 981: "It may be taken to be now established that which is let out in offices or tenements remain common hallways and stairways of a building in the control of the landlord for the use of his tenants, and that it is his duty to each tenant to keep them in the same safe condition or apparent condition in which they were at the beginning of the several leases to the respective tenants." Fitzsimmons v. Hale, 220 Mass. 461, 107 N. E. 929; Miller v. Hancock, [1893] 2 Q. B. 177. [2] There is no doubt that the lessee was entitled as a part of his grant to use the stairway in common with other tenants. Otherwise he would not have had access to the leased premises. This right was a right in the nature of an easement and was appurtenant to the premises described in the lease. Nesson v. Adams, 212 Mass. 429, 99 N. E. 93; Epstein v. Dunbar, 221 Mass. 579, 109 N. E. 730. And this would be so whether the lease granted the premises with the appurtenances in express terms or was silent on that subject. It does not follow, however, that the stairway became a part of the demised premises because, as before stated, it remained in the exclusive possession and control of the landlord upon whom alone rested the duty of making repairs. There was no duty or even right vested in the tenant to make repairs upon the stairway; he could only travel over it in passing to and from the rooms which he had leased. [3] The ordinary rule in the absence of grant or contract, is that a person who is entitled to the use of an easement, 1. e. the owner of the dominant estate, is bound to keep the easement in such repair as is necesThe case comes to this court upon the plain-sary for the exercise of his rights in its use. tiff's appeal from the decision of the appellate But that rule is held not to apply to common division of the municipal court of the city of hallways and common stairways; as to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes them, the duty to repair rests upon the landlord. Flanagan v. Welch, ubi supra; Prescott v. White, 21 Pick. 341, 32 Am. 'Dec. 266; Miller v. Hancock, ubi supra; Taylor v. Whithead, 2 Doug. 744. The principle which renders a lessee liable under similar covenants in a written lease, for breach of covenant by a sublessee during the original term, as was held in Miller v. Prescott, 163 Mass. 12, 39 N. E. 409, 47 Am. St. Rep. 434, does not apply to the case at bar. [4] As the stairway was not a part of the demised premises it follows that damage thereto was not a breach of any covenant of the lease. The cases cited and relied on titled to the use and occupation of the premises as the assignee of a written lease thereof. In 1908, the plaintiff made a written lease of a part of the premises described in the writ, to the "George L. Elliot Barrel Company, Inc.," for the term of 15 years. The defendant claims that he is entitled to occupy the premises as assignee of this lease, but there is no evidence to show that the lease was ever assigned to him by any instrument in writing. There is a conclusive objection to the defendant's contention, although neither party has referred to it. R. L. c. 127, § 3, provides that: by the plaintiff which hold that "appurte-ed without an instrument in writing signed by nances" include everthing necessarily used or reasonably necessary to the part demised, are distinguishable from the case at bar for the reasons stated. The order of the appellate division vacating the finding for the plaintiff and ordering judgment for the defendant was right, and must be affirmed. So ordered. (225 Mass. 510) SCOTTI v. BULLOCK. (Supreme Judicial Court of Massachusetts. Middlesex. Jan. 5, 1917.) "An estate or interest in land which is creatthe grantor or by his attorney shall have the force and effect of an estate at will only, and no estate or interest in land shall be assigned, granted or surrendered unless by such writing or by operation of law." fendant could have no interest in the premIt is plain that under this statute the deises except an estate at will. Mathews v. Carlton, 189 Mass. 285, 75 N. E. 637; Emery v. Boston Terminal Co., 178 Mass. 172, 59 N. E. 763, 86 Am. St. Rep. 473. The entry must be: Exceptions overruled. (225 Mass. 464) FRAUDS, STATUTE OF 123(1)-ASSIGNMENT PECK v. NEW ENGLAND TELEPHONE & OF LEASE-ESTATE AT WILL-STATUTE. Rev. Laws, c. 127, § 3, provides that an estate or an interest in land created without an instrument in writing signed by the grantor or his attorney shall have the force of an estate at will only, and no estate or interest in land shall be assigned, granted, or surrendered unless by such writing, or by operation of law. A written lease of premises was made to a corporation. Defendant claimed to be entitled to occupy the premises as assignee of such lease. Held, there being no evidence that the lease was ever assigned to him by any instrument in writing, he could have no interest in the premises except an estate at will. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 272; Dec. Dig. 123(1).] Exceptions from Superior Court, Middlesex County; Loranus E. Hitchcock, Judge. Action of ejectment by Angelo S. Scotti against George S. Bullock. Verdict was ordered for plaintiff, and defendant excepts. Exceptions overruled. E. A. Counihan, Jr., and F. W. Fosdick, both of Boston, for plaintiff. Stebbins, Storer & Burbank, of Boston, for defendant. 1. TELEGRAPH CO. (Supreme Judicial Court of Massachusetts. Middlesex. Jan. 4, 1917.) WITNESSES 379(7)-INCONSISTENT STATEMENTS JUDICIAL RECORDS. Where plaintiff testified as to his earnings before the injury in question, the record in a former action by plaintiff against his employer to recover wages for the same period was admissible to show the declaration there claimed wages much less than his present testimony, even though such former action was prematurely brought. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 1251; Dec. Dig. 379(7).] 2. ATTORNEY AND CLIENT 70 - PRESUMPTIONS-PLEADINGS DRAWN BY ATTORNEY. A declaration in another action was presumably drawn by plaintiff's attorney under plaintiff's direction. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 95; Dec. Dig. 70.] 3. WITNESSES 317(1) INCONSISTENT STATEMENTS-CREDIBILITY. J. J. Butler, of Boston, for plaintiff. Pow- 215, 38 N. E. 435; Sullivan v. Boston Elev. ers & Hall, of Boston, for defendant. CROSBY, J. This is an action of tort to recover for personal injuries alleged to have been received by the plaintiff on November 14, 1914, while using a telephone instrument owned by the defendant. Ry., 199 Mass. 73, 84 N. E. 844, 21 L. R. A. (N. S.) 36; Root v. Boston Elev. Ry., 183 Mass. 418, 420, 67 N. E. 365. It follows that the entry must be Exceptions overruled. (225 Mass. 399) SALISBURY BEACH ASSOCIATES v. EVANS et al. (Supreme Judicial Court of Massachusetts. Es- OF LANDS-STATUTE. lien for the taxes had expired as to parcels of land which had been alienated. [Ed. Note.-For other cases, see Taxation Cent. Dig. § 599; Dec. Dig. 360.] Report from Supreme Judicial Court, Essex County; William C. Loring, Judge. [1] The plaintiff testified upon direct examination that from August 1, 1914, to the date of the accident he was in the employ of Gerstein Brothers as a salesman, and that his average earnings in this employment had been $24 to $25 a week. This evidence was competent and material upon the question of St. 1909, c. 490, pt. 1, § 88, provides that if damages. It related to his earning capacity realty is divided after a tax has been assessed, and if the division is recorded, the assessors, at the time he was injured. On cross ex- at any time before sale for taxes, on written amination he testified that he had brought request of the owner of any portion, shall apan action against Gerstein Brothers to re- portion the tax on the several parcels, and that cover the amount which he claimed to be due only the portion of the tax apportioned on any parcel shall continue to be a lien on it, and the him for services from August 1, 1914, until owners or mortgagees shall be liable only for some time after the accident. Subject to the the tax apportioned on the parcel owned in plaintiff's exception, a copy of the record in whole or in part by them respectively. Held, that action was admitted in evidence; it ply to cases where the tax lien as to such parts that the right to an apportionment did not apshowed that the amount claimed by the of the estate as have been alienated is gone, the plaintiff was much less than he testified in provision that the request for an apportionment direct examination he had earned. We are may be made "at any time before said real estate has been sold for payment of taxes" not of opinion that the record was admissible to extending the time for the request to a period contradict the testimony of the plaintiff on when the lien has expired, so that assessors of his direct examination as to his earning a town properly refused to apportion a tax ascapacity. Robinson v. Old Colony Street sessed on realty part of which was later sold, where the earlier of two requests for apportionRy., 189 Mass. 594, 76 N. E. 190; Riley V.ment was made more than five weeks after the Tolman, 181 Mass. 335, 63 N. E. 892; Mullins v. Peaslee, 180 Mass. 161, 61 N. E. 811. [2, 3] The rule that pleadings are not evidence do not apply to this case. While the declaration in the case against Gerstein Brothers was drawn by the plaintiff's attorney, still it may be presumed to have been prepared under the instructions of the plaintiff. James v. Boston Elevated Ry., 201 Mass. 263, 266, 87 N. E. 474; Johnson v. Russell, 144 Mass. 409, 11 N. E. 670; Gordon v. Parmelee, 2 Allen, 212, 215. The contention of the plaintiff that the action brought by him against Gerstein Brothers was so brought prematurely, does not seem to be material, as the relevancy of the record was to show by the declaration that his earnings before the injury were much less than he had testified on direct examination that they amounted to. The evidence as shown by the record, was admissible to affect his credibility. In other words, it was properly allowed to test his honesty as well as the accuracy of his recollection. If the jury were satisfied that he testified falsely as to a material issue in the case, they had a right to consider it in determining the weight and degree of credibility to be given to all his testimony, including not only that which related to damages, but that which referred to any other issue involved in the trial. The credibility of the plaintiff as a witness was wholly for the determination of the jury. Com. v. Clune, 162 Mass, 206, 213, Petition for mandamus by the Salisbury Beach Associates against William M. Evans and others, Assessors of the Town of Salisbury. On report for determination of the full court. Petition dismissed. Walter Coulson and A. N. Frost, both of Lawrence, for petitioners. J. T. Choate, of Amesbury, and A. F. Priest, of Haverhill, for respondents. RUGG, C. J. This petition for a writ of mandamus was reported "for the consideration and determination of the full court, such order to be entered as law and justice may require." Respecting similar phraseology, it was said in Scanlon v. Carey, 207 Mass. 285, 93 N. E. 697, that: "The reservation in this case is informal, but the parties have treated it, and we treat it as intended to report to this court questions of law that arose at the hearing, which was all under the statute, R. L. c. 156, § 7; c. 173, § that could be reserved or reported 105." Boucher v. Salem Rebuilding Commission, 225 Mass. 18, 113 N. E. 575. The petitioners are owners of Salisbury Beach, which contains about five hundred acres of land. The respondents are the assessors of the town of Salisbury, within the territory of which the beach lies. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Оп the portion of the tax apportioned upon any parcel "shall continue to be a lien upon it," is an express indication that no apportionment can be demanded unless made in time for a lien effective for the practical purposes of a tax collector to remain upon the several parcels after the apportionment shall have been made. The provision that the request for an apportionment may be made "at any time before said real estate has been sold for payment of taxes," does not stretch the time for the request to a period when the lien has expired. November 8, 1915, the petitioners notified the respondents that the real estate assessed to them in 1913 had been divided by sale since the tax for 1913 had been assessed, and such division recorded, and requested them "to apportion said tax of 1913, and the costs and interest accrued thereon, upon the several parcels thereof in proportion to the value of each," in accordance with St. 1909, c. 490, pt. 1, § 88.1 On December 18, 1915, another request for apportionment was addressed to the respondents, stating that the Lawrence Trust Company had a duly recorded mortgage upon all their property except It follows that the petitioners did not Lot 437, Sheet 3200-N on a plan filed in the make a seasonable application for an ap registry of deeds, and asking apportionment portionment and the assessors rightly refus of the tax "upon said parcel and upon the rested to comply with their request. of the registered land which is covered by Petition dismissed. said mortgage." Apparently this mortgage was subsequent to April 1, 1913. The petitioners have paid all but $769.31 out of $7,142.65, the total tax assessed as of April 1, 1913. The respondent assessors refused to make the apportionment and this petition is brought to compel them to do so. (225 Mass. 372) ATTORNEY GENERAL v. LOOMIS. SUMPTIONS. PRE In a proceeding in the nature of quo warranto, all allegations of material facts not traversed by either party must be assumed to be true. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 270, 274, 275; Dec. Dig. 129(1).] 2. MUNICIPAL CORPORATIONS 149(2) — Or. CITY CLERK TERM OF OFFICE STATUTES-CONSTRUCTION. The earlier of the two requests for appor-1. tionment was made on November 8, 1915, more than five weeks after the lien for the taxes of 1913 had expired as to parcels of land which had in the meantime been alienated. St. 1909, c. 490, pt. 2, § 36. It is one of the agreed facts that a large number of lots were sold out of the beach estate by the petitioners after April 1, 1913, and before April 1, 1914. Rights as to collection of the tax are limited somewhat by any apportionment. Rogers v. Gookin, 198 Mass. 434, 85 N. E. 405. But it is manifest that the right to an apportionment under section 88 of part 1 of the tax act was not intended to apply to cases where the lien as to such parts of the estate as have been alienated is gone. Grave difficulties might arise as to the collection of the whole and the parts of the tax, and the validity of such an apportionment. Prompt collection of taxes is essential to the support of government. The duties of a tax collector as to taxes committed to him are onerous and his liability is stringent. Boston v. Turner, 201 Mass. 190, 196, 87 N. E. 634. The design of tax laws is to promote speedy collection in order that government may not be hampered by delays. They are to be interpreted in the light of this necessary purpose. The use of the word "lien" in that part of section 88 which provides that only 1 "Section 88. If real estate is divided by sale, mortgage, upon a petition for partition or otherwise after a tax has been assessed thereon and such division has been duly recorded in the registry of deeds, the assessors at any time before said real estate has been sold for payment of taxes, upon the written request of the owner or mortgagee of any portion thereof, shall apportion said tax and the costs and interest accrued thereon upon the several parcels thereof, in proportion to the value of each, and only the portion of said tax, interest and costs so apportioned upon any such parcel shall continue to be a lien upon it; and the owners or mortgagees shall be liable only for the tax apportioned upon the parcel owned in whole or in part by them respectively." FICERS of Medford, provides that in 1902 and every Rev. Laws, c. 26, § 15, accepted by the city third year thereafter a city clerk shall be elected or appointed for three years from the date of election or appointment and shall hold until election or appointment and qualification of his suc cessor unless sooner removed by due process of law, and that one appointed to fill a vacancy shall hold until the end of the unexpired term of the person who last held the office. St. 1903, c. 345, § 10, adopted after enactment of Rev. Laws, c. 26, § 15, provides that the board of aldermen shall elect according to law a city clerk to hold for the term of election and until election and qualification of his successor. Section 53 provides that all persons holding office when the act takes effect shall continue to hold such offices until organization of government is effected and respective successors are chosen and qualified. Section 56 provides that all general laws in force when the act is accepted and special laws passed with reference to the town of Medford which have been accepted by the town shall continue in force. Held, that the provisions of St. 1903, constituting the charter of Medford, did not affect the term of the city clerk, but merely vacated all offices as of the date of its adoption. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 328; Dec. Dig. 149(2).] 3. MUNICIPAL CORPORATIONS 149(2) — OF- The sweeping removal of officers by St. 1903, c. 345, 53, on adoption of the new charter in Medford, was an instance of the officers' being 'sooner removed by due process of law" within the meaning of such words in Rev. Laws, c. 26, § 15, providing for appointment of officers to fill vacancies. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 328; Dec. Dig. 149(2).] 4. MUNICIPAL CORPORATIONS 149(2)—OFFI of material facts not traversed by either party must be assumed to be true. Prior to the first Monday of January, 1904, the city of Medford had accepted St. 1901, c. 332, now R. L. c. 26, § 15. That statute es CERS CITY CLERK-TERM OF OFFICE-STAT-tablished the term of office for the city clerk in all cities which accepted its provisions. UTES-CONSTRUCTION. That term, so far as applicable to the city of Medford (which never has elected a city clerk in December); was in these words: Under Rev. Laws, c. 26, § 15, providing that one appointed to fill a vacancy in the office of city clerk shall hold until the end of the unexpired term of the person who last held office, and providing that the term of city clerk shall be three years from 1902 and until three years thereafter, the terms are to be ascertained by computing the number of years in periods of three from 1903. "In the year nineteen hundred and two, and * * a city in every third year thereafter clerk shall be elected or appointed, as required by the charter of said city, for a term of three years from the date of his election or appointment. Such clerk shall hold his office * 申 [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 328; Dec. Dig. until the election or appointment and qualification of his successor, unless sooner removed by 149(2).] due process of law. A person who is appointed to fill a vacancy in the office of city clerk shall hold * * * office until the end of the unexpired term of the person who last held the office." 5. STATUTES 212 CONSTRUCTION SUMPTION. PREWhen a time is fixed by statute for election or appointment of an officer, it is to be presumed that the election or appointment will be made according to law, although the provision is directory only, and the statute as a whole is to be construed upon that presumption. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 289; Dec. Dig. 212.] 6. MUNICIPAL CORPORATIONS 149(3)—OFFICERS-CITY CLERK-TERM. Where, after adoption of St. 1903, c. 345, in spite of St. 1901, c. 332, now Rev. Laws, c. 26, 15, making the city clerk's term of office three years, commencing in 1902, a clerk was elected in 1904, but during 1914, the then incumbent resigned, the term of the appointee must be determined by computation of the three year periods from 1902 when the statute went into effect, so that, the resigning clerk having been elected in 1914, would have held until January, 1917, and the appointee would hold for the same term, and one thereafter elected in 1916 held office without right. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 329; Dec. Dig. 149(3).] 7. QUO WARRANTO 11-NATURE OF WHEN PROPER. Quo warranto is the proper proceeding to question the right to office of de facto, but not de jure, officers. [Ed. Note. For other cases, see Quo Warranto, Cent. Dig. § 13; Dec. Dig. 11.] Reserved from Supreme Judicial Court, Suffolk County. Information in the nature of quo warranto by Henry C. Attwill, Attorney General, on the relation of Frederick W. McGowan against Charles H. Loomis, city clerk. At the request of both parties, the case was reserved for the full court. Judgment of ouster. Frank W. Kaan, of Boston, for petitioner. Wm. J. Miller and Geo. C. Scott, both of Boston, for respondent. RUGG, C. J. [1] This is an information in the nature of a quo warranto requiring the respondent to show by what title he holds the office of city clerk of the city of Medford. The case comes before us by reservation on information and answer. All the allegations As matter of construction, that section, if it has continued applicable, means that a city clerk ought to be elected in Medford in 1902, and every third year thereafter, viz., in 1905, 1908, 1911, 1914 and 1917. R. L. c. 26, § 15, was in effect in Medford when St. 1903, c. 345, which was the revised charter of the city of Medford, took full effect on the first Monday in January, 1904. The only provisions of that charter relating directly or indirectly to the office of city clerk are found in sections 10, 53 and 56. Section 10, so far as concerns city clerk, is in these words: * * Section 53 of the charter is in these words: "All persons holding office in said city at the shall time when this act takes effect continue to hold such offices until the organization of the city government as hereby authorized shall be effected and until their respective successors shall be chosen and qualified." Manifestly that section fixes no term for any office. It simply defines the end of the period of service for those holding city offices at the time the city charter takes effect. Section 56 of the charter is in these words: "All general laws in force in the city of Medford when this act is accepted as herein provided. and all special laws heretofore passed with reference to the town or city of Medford, which shall have been duly accepted by said town or city, and which shall then be in force, shall, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |