HUNNEWELL v. COHEN, 219 Mass. 162 (1914)

106 N.E. 1045

EDWIN W. HUNNEWELL another vs. DAVIS H. COHEN others.

Supreme Judicial Court of Massachusetts. Suffolk.October 8, 1914.
October 24, 1914.

Present: RUGG, C.J., LORING, SHELDON, De COURCY, CROSBY, JJ.

Equity Pleading and Practice, Appeal.
Where, on an appeal from a decree for a plaintiff in a suit in equity, the contentions of the appealing defendants were disposed of by the findings of fact made by the trial judge, which presented no such inconsistency as to require the reversal of any of them, it was held that such contentions were without merit, and it was ordered that the decree be modified by charging those defendants additional interest for the time that had elapsed since the

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entry of the decree and with the costs of the appeal, and that the decree so modified be affirmed.

BILL IN EQUITY, filed in the Superior Court on January 13, 1914, in which the plaintiffs, who were Edwin W. Hunnewell and Mary G. Hunnewell, his wife, sought to enjoin the foreclosure or the assignment of a certain mortgage given by them to the defendants Cohen and Fittingoff and alleged to be held by the defendant Max Silverman; with prayers for an accounting and for general relief.

In the Superior Court the case was heard by Jenney, J., who made a final decree that the defendants Cohen and Fittingoff pay to the plaintiff Mary G. Hunnewell $511.87 with $46.06, which was interest at the rate of six per cent per annum from August 29, 1912, to the date of the entry of the decree, and costs of court in the sum of $20.83 taxed in favor of the plaintiff, amounting in all to $564.93, and that execution be issued for those amounts. And it further was ordered that the bill be dismissed as against the defendants Ginsberg and Silverman with costs in the sum of $7.83 to each.

The defendants Cohen and Fittingoff appealed, and the judge at their request made a report under R.L.c. 159, § 23, of the material facts found by him.

R.J. Cram, for the defendants Cohen and Fittingoff.

J.A. McGeough, for the plaintiff.

SHELDON, J.

It is enough to say in this case that the contentions of the defendants Cohen and Fittingoff are without merit. They are disposed of by the findings of fact made by the judge who heard the case. Those findings present no such inconsistency with each other as to require us to reverse any of them, and we cannot see that they work any injustice to the defendants. No question of law arises.

The decree appealed from must be modified by charging Cohen and Fittingoff with additional interest for the time that has elapsed since the entry of that decree, and with the costs of the appeal, and so modified must be affirmed.

So ordered.

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