Opinion
June 2, 1950.
J.F. Kelley, for the plaintiff.
E.V. Cashin, ( M.J. Aldrich with him,) for the defendant.
Order dismissing petition to establish draft report affirmed. The plaintiff in an action at law in a District Court appeals from an order of the Appellate Division dismissing his petition to establish a report based upon the overruling by the trial judge of the plaintiff's motion for a new trial. See Rules 28, 30 of the District Courts (1940). According to the plaintiff's petition the trial judge certified that he disallowed the report because he did not think that all pertinent testimony was properly included. This was a sufficient reason for disallowing the report. The Appellate Division in its opinion states that the certificate of the judge was not rebutted, explained, or overcome by evidence before it. This statement is part of the record. Calcagno v. P.H. Graham Sons Co. Inc. 313 Mass. 364, 365-366. The burden rested upon the plaintiff to produce to the Appellate Division evidence sufficient to control the certificate of the trial judge. The decision of the Appellate Division that he had failed to do so was final. Cohen v. Berkowitz, 215 Mass. 68, 71. Sawsik v. Ciborowski, 256 Mass. 583. Patterson v. Ciborowski, 277 Mass. 260, 266. Santosuosso v. DellaRusso, 300 Mass. 247, 250. Whether there were other sufficient reasons for dismissing the petition need not be considered.