the opinion. By his order a decree was entered dismissing the bill; and the plaintiffs appealed.

W. A. Davenport, for the plaintiffs.

F. L. Greene, for the defendants.

DE COURCY, J. At the annual town meeting in March, 1918, the voters authorized the removal of a band stand, the property of the town, from the Main Street school grounds to the Federal Street school grounds in Greenfield. The plaintiffs, who are the school committee, brought this suit to restrain the defendants from carrying out the vote; a temporary injunction was denied; and after a hearing on agreed facts the bill was dismissed. The trial judge states, in his findings: "I am unable to find that the town at any time has distinctly given the school committee supervision of the grounds on which the school buildings stand exclusive of the town." Further: "The evidence, in this case, falls far short of proving that the portion of the Federal Street grounds left for school purposes is inadequate or that its use for school purposes is seriously damaged; or, further, that the usefulness of the Main Street grounds for school purposes is injuriously affected by the removal of the band stand." See St. 1913, c. 716, § 5. The main, if not the sole, question raised is whether the plaintiffs, constituting the school committee, have the right to prevent the town from placing this structure on the Federal Street lot.

The controlling statute, R. L. c. 42, § 49, declares "Every town shall provide and maintain a sufficient number of school houses, properly furnished and conveniently located for the accommodation of all children therein who are entitled to attend the public schools. . . . The school committee, unless the town otherwise directs, shall have general charge and superintendence of the school houses therein, shall keep them in good order, and shall procure a suitable place for the schools, if there is no school house, and provide fuel and all other things necessary for the comfort of the pupils therein, at the expense of the town."

The plaintiffs contend that this places the lot, on which the school house is erected, in the exclusive control of the school committee. It is significant, however, that the land is not mentioned in the statute. The power of the committee in reference to selecting teachers, prescribing the books to be used and courses

of study pursued, and regulating the internal affairs of the school, are expressly prescribed. Their power over the school grounds is left entirely to implication. As they are given charge of the school building ("unless the town otherwise directs"), undoubtedly they have a right to occupy and care for the land so far as is reasonably necessary for the safe and convenient use of the building and the health and comfort of the scholars. McKenna v. Kimball, 145 Mass. 555. And this implied control of the grounds is likely to be more extensive under the recent legislation authorizing the use of school property for certain educational and recreation activities. St. 1913, c. 391, as amended by St. 1914, c. 538. And see St. 1911, c. 314. In many instances, as where the lot is small, this implied power necessarily embraces most of the incidents of ownership. But oftentimes there must remain extensive rights of ownership that can be exercised by the town, which has determined the location of its school houses and procured land therefor. R. L. c. 42, § 51. For example, the right of the town to lay a water pipe or sewer through the lot would scarcely be questioned. As the control of the committee over the school grounds arises from implication, it is limited to the reasonable exercise of the powers expressly given to them with reference to the control and use of the school buildings; especially where the town has acquired the land by purchase. A controversy between the town as a municipal corporation and the school committee as to the proper use of the school grounds was not anticipated by the Legislature, and the limit of their respective powers in this field of common interest was never defined. For the purposes of the present case it is enough to say, that the plaintiffs have shown no legal authority in the committee to prohibit the town from moving its band stand from the Main Street lot; and on the facts disclosed, especially the finding that placing the stand on the Federal Street lot will not injuriously affect the use of the grounds for school purposes, the consent of the school committee was not an essential prerequisite to the action of the town in removing the structure to its new location.

A further answer to the contention of the plaintiffs, that they have full and exclusive control of the school grounds, is that under the statute the charge even of the school houses is given to the committee only "unless the town otherwise directs." This lan

guage appears in the sections of the earlier statutes which provide for the maintenance of the school houses, providing fuel, etc., but not in the sections giving to the committee "the general charge and superintendence of the school houses." Gen. Sts. c. 38, §§ 36, 40. Pub. Sts. c. 44, §§ 46, 50. The subject matter of both sections was embodied in § 49 of the R. L. c. 42. The clause quoted apparently contemplates the making of general provisions by the town itself to keep the school houses in good order, and provide fuel, etc. We do not now undertake to define its scope, and the limitations it places on the powers of the school committee, because in our opinion it is not applicable to the facts in the present case. But plainly it is inconsistent with the claim that the statute gives the school committee full and exclusive control over the school grounds.

Confining ourselves, then, to the agreed facts and the reasonable inferences to be drawn therefrom, we are of opinion that the school committee have shown no sufficient ground for legal objection to the action voted by the town.

Decree affirmed with costs.

THOMAS J. CLARK & another vs. WABAN ROSE CONSERVATORIES

& others.

Suffolk. October 24, 1919.- October 28, 1919.

Present: RUGG, C. J., BRALEY, DE COURCY, CROSBY, & CARROLL, JJ.

Equity Pleading and Practice, Decree, Appeal.

In a suit in equity, wherein the plaintiff by a statement in writing challenged the authority of an attorney at law to appear for one of the defendants, a final decree was entered, reciting that when the case came on to be heard on its merits the plaintiff failed to offer any evidence in support of the allegations of the bill and failed to appear to prosecute the suit, and ordering that the bill be dismissed with costs to the defendants severally. Held, that the decree must be taken as a disposition adversely to the plaintiff of the question as to the authority of counsel for one of the defendants.

A paper, entitled "Exception," filed in a suit in equity in the Superior Court after the entry of a final decree and never presented to a judge of that court, raises no question of law in this court upon an appeal from the final decree. Upon the appeal above described, no evidence was reported, and it was held that there was not apparent upon the record any abuse of discretion in calling the case for trial, and no error of law.

BILL IN EQUITY, filed in the Superior Court on August 21, 1918, and afterwards amended, seeking to enjoin the defendants from ejecting the plaintiffs from certain real estate.

The officer's return upon the subpoena to the defendant, Lyda B. Miller, referred to in the opinion, was of diligent search but no service. An attorney thereafter entered an appearance in her behalf.

Other proceedings in the Superior Court are described in the opinion. The plaintiffs appealed from a final decree dismissing the bill, their appeal stating the following grounds:

"1. That the pleadings were not completed and the cause was not ready for a trial upon the merits.

"2. That the respondent, Lyda B. Miller, had not been properly joined as a party respondent to the bill.

"3. That the said Lyda B. Miller was and is a necessary party to the proceedings.

"4. That the presiding justice, in disregard of the rights of the complainants and the law, exceeded his discretion and committed abuse thereof in dismissing the bill without cause."

J. A. Vitelli, for the plaintiffs.

W. E. Ulmer, for the defendants.

BY THE COURT. This is a suit in equity whereby the plaintiffs seek to enjoin one of the defendants from ejecting the plaintiffs from certain real estate. A final decree was entered, reciting that, when the case came on to be heard on its merits, the plaintiffs failed both to offer any evidence in support of the allegations of the bill and to appear to prosecute the suit, and ordering the bill dismissed with costs taxed in favor of the several defendants. The case comes before us on the plaintiffs' appeal from this decree. The plaintiffs, by written statement, challenged the authority of counsel to appear for Lyda B. Miller, one of the defendants. The final decree must be taken as a disposition of the question thereby raised adversely to the plaintiffs' contention. The plaintiffs' paper entitled "Exception" respecting this matter, not filed until after the entry of the final decree, has not been allowed, and does not appear even to have been presented to the trial judge. Under such circumstances, it raises no question of law. There is not apparent any abuse of discretion in calling the case for trial. No evidence is reported. No error of law is disclosed upon the record. Decree affirmed with costs.

MARY FLYNN vs. JOHN A. JOHNSON.

Suffolk. October 28, 1919.— October 28, 1919.

Present: RUGG, C. J., BRALEY, DE COURCY, CROSBY, & CARROLL, JJ.

Practice, Civil, New trial.

Questions which might have been raised at the trial of an action upon its merits cannot be presented after verdict as of right upon a motion for a new trial. The disposition of a motion for a new trial based on contentions that the verdict was against the law, against the weight of the evidence, or against the law and the weight of the evidence, or that the damages were excessive, lies wholly within the discretion of the trial judge.

TORT for personal injuries caused by the plaintiff being struck by a falling "clothes shed" on the roof of a tenement house in Boston in which the plaintiff was a tenant of the defendant. Writ dated December 9, 1912.

In the Superior Court the case was tried before Dana, J. There was a verdict for the plaintiff in the sum of $2,500. The defendant moved for a new trial on the grounds, that the verdict was against the law, that the verdict was against the weight of the evidence, that the verdict was against the law and the weight of the evidence, that the damages were excessive, and because "there was no evidence to show knowledge or legal responsibility for knowledge of the condition of the roof, without which the jury could not find against the defendant." The motion was denied, and the defendant alleged an exception solely to the ruling denying the motion for a new trial.

The case was submitted on briefs.

R. G. Kilduff & C. S. Hill, for the defendant.

J. J. O'Connor, for the plaintiff.

BY THE COURT. Whatever questions might have been raised at the trial on the merits, cannot be presented as of right on a motion for new trial. The granting or the denial of the motion on this and the other grounds therein set forth was wholly discretionary with the trial judge.

Exceptions overruled.