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01/26/78 PETER GAILLARD & ANOTHER v. BOARD APPEALS

January 26, 1978

PETER GAILLARD & ANOTHER
v.
BOARD OF APPEALS OF LEXINGTON & ANOTHER.



The parties agreed at oral argument that the governing statute in this matter is G.L. c. 40A, § 21, as in effect prior to St. 1975, c. 808, § 3. We assume, without deciding, the correctness of their view, and conclude that it was error to dismiss the complaint because it was apparent from the face of the complaint that the plaintiffs might be entitled to some relief. Mass.R.Civ.P. 8(a), 365 Mass. 749 (1974). See Charbonnier v. Amico, 367 Mass. 146, 152-153 (1975). Moreover, as there was no need in the circumstances to plead the statute relied on, it was not fatal for the plaintiffs to cite a version of G.L. c. 40A, § 21, which the parties now agree was inapplicable. Cf. Springfield v. Commonwealth, 349 Mass 267, 270 (1965). Accordingly, the judgment appealed from is reversed, and the plaintiffs are granted leave to file an amended complaint in the Superior Court within forty days of the date of the rescript. The defendants may then move or answer according to the rules.

So ordered.

19780126

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