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01/30/78 ATHOS V. LONGO v. BOARD APPEALS MALDEN.

January 30, 1978

ATHOS V. LONGO, TRUSTEE,
v.
BOARD OF APPEALS OF MALDEN.



The judgment appealed from must be reversed because the Judge's findings make clear that he took into consideration as evidence an appraisal which was stipulated to be "attached to the return" of the board but which was not admitted in evidence. The Judge was required to determine the facts solely from the evidence introduced before him. Devine v. Zoning Bd. of Appeals of Lynn, 332 Mass. 319, 321-322 (1955. The plaintiff is not entitled to entry of judgment in his favor on the present record, because (1) he had (as he concedes) the burden of proving that the fire did not diminish the value of his property by more than fifty per cent, (2) the Judge was not required to accept his estimate of the value of that property even if there had been no other evidence of its value, and (3) the evidence that the plaintiff assigned the property a lower value in his application for an abatement was not confined to use for impeachment purposes as a prior inconsistent statement but was also entitled to probative weight as an admission. See Leach & Liacos, Massachusetts Evidence 194 (4th ed. 1967).

Judgment reversed.

19780130

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