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V. 43 WINTHROP. BROWN Mass.]
goods annexed of not al- the will with as administrator
in rights to the fund power had vest ready administered
had judge probate author- the of claimants, in the several
adopted a scheme in accord distribution with ity to order
of is substance what he This the upon by him. and acted
drawn was erroneous originally as The decree has done.
in the several counsel part to distribution directing in
142. how- This, 272 Mass. Boynton Tarbell, v. named.
the amended decree As so ever, judge the has corrected.
is affirmed.
accordingly. Ordered 
Mary Winthrop. A. vs. Town of Brown 
— 2, January 19, 1931. 1931. March Middlesex.
• Rugg, Ceosby, Pieece, Wait, Sandeeson, & C.J., JJ. Present:
Civil, Practice, proof Waiver Way, defect, Public: Notice. of notice. 
n • Attorney by at counsel. Waiver. Law.
attorney “attorney If, law, an at who in his own name as for” a after by signed had addressed received a town clerk woman a letter to and
purported 84, 18, 19, notice under L. received which to be a G. c. §§
attorney, whom the clerk had from the town’s to town delivered such
comply stating with letter, a letter that notice did the law such not
directing given specified in be as 20 said § and that further notice of
the statute, attorney notice, new addressed to town clerk such sends a by attorney by title, but such new town name not notice its “c/o” upon clerk, since it to the town is invalid not served or sent treas- was
urer, one of the town. or the selectmen of
notice, in and to and delivered to the A sent behalf of a woman addressed
hereby town, reading, “You notified . . . clerk of a and are that
by injured reason of defect in sidewalk on was ... woman] [the [a
place approximately opposite in a . . : certain street the at town] #440
by Sunday 5th, damages evening and claims reason of said on October injury injury,” did not a notice of the cause of the to contain sufficient
84, satisfy requirements 18, L. c. the of 19. G. §§
notice, purporting response to the new to be sent in demand under If the described, merely, hereby “You 20 above are of the statute as stated § injured by . . . was reason of in the notified that defect woman] [the previously . street in front of 440 . . number on the sidewalk [the Sunday evening, 5, street, named], on that side of the on October
by p.m., damages 1926, and 7 and claims reason of said between 6:30
defect,” notice, properly new even if it had such been addressed and
served, under said 18-20. was insufficient §§

44 V. BROWN WINTHROP.. [275 
required by 84, The notice L. 18, precedent G. c. is a condition to the §
right 84, to maintain an 15, action under G. L. c. and cannot be §
by city waived a or town.
against At the trial of an 84, 15, action a town under G. L. c. the town’s §
agreed notices, counsel purporting that given to have been under
18-20 of statute, respects. the were valid in all §§ A verdict was
ordered for exceptions by the defendant and plaintiff saved the were
sustained. a As second trial begin, was about to the same town
plaintiff counsel informed proof counsel for the require that he would
time, place of notice of and cause. The notices were not sufficient.
judge The trial ruled “as a matter of agreement having law that that
open been made in court at binding the trial is first effective and at
Held, trial.” this that
(1) required by The notice the statute went to the root of the
plaintiff's merely cause of action in and was no sense incidental to the
proof existing of an right;
(2) The authority town counsel had no statutory to waive the
requirements notice; as to such a
(3) ruling by The judge the error, was and a verdict for the de-
fendant should have been ordered. 
Tort under G. L. c. 84, 15. Writ dated May 23, §
1927.
proceedings Material at the first trial of the action in
the Superior Court and material facts and proceedings at
the second trial before McLaughlin, J., following the deci-
sion in reported 270 Mass. 322, are in opinion. stated the
a plaintiff There was verdict for the in the sum of $4,000.
alleged exceptions. The defendant
" Guptill, L. C. for the defendant.
Bushnell, B. T. for plaintiff. the 
Pierce, J. This is an action of tort to recover damages
personal, injuries for by sustained plaintiff the by reason
of a fall on the westerly sidewalk of Revere in Street,
on Winthrop, evening the of October 3, 1926. This action
Mary with an action entitled A. Brown vs. Ezekiel C. Sar-
gent was tried to a and jury, after a directed verdict for
each defendant came to this court on the exceptions of
plaintiff. the Brown v. Winthrop, 270 Mass. 322. In the
exceptions above actions the of the plaintiff were sus-
to Winthrop tained as the town of and to overruled as
Sargent. the defendant After a second trial of the action
the town of and against Winthrop a verdict for the plain-

45 BROWN V. WINTHROP. Mass.]]
of again exceptions the case is before us on the tiff,
of judge the defendant to the refusal of the at the close
on the the to direct a for defendant evidence verdict the
among others, plaintiff comply that the did not ground,
of the statutory by giving the notice requirements with
18. 84, and of L. c. time, place § cause the accident. G.
agreed by At the first trial of the it was counsel actions
in for the defendant town that the notice was valid all
begin trial the respects. As the second was about to
same town informed the that plaintiff counsel counsel for
require he would of and proof time, place of notice cause.
The then plaintiff offered, called the town clerk and and
judge the in received, objection evidence without the fol-
lowing notice: The 11, Clerk, “October 1926 Town
Winthrop, hereby Mass. You are notified that Mrs.
Mary Washington Brown of 376 in- Street, Lynn, was
jured of in by reason defect sidewalk on Revere Street,
at a Winthrop, place approximately opposite #440 Revere
Street, on Sunday evening 5th, October and dam- claims
ages by reason injury. Very truly yours, of said Robert
T. for Bushnell, Attorney Mary Brown.” This notice
received, by was the town clerk on 13, 1926, October and
attorney. sent to the town 15, 1926, On October the
for the attorney attorney town sent to the the plain- for
tiff the Mary letter which follows: “Mrs. Brown c/o
Robert T. Bushnell, Esq., Street, Boston, 53 State Mass.
your Dear You that hereby Madam: are notified notice
of you October 11 not the law and comply does with are
hereby give to further days directed a notice within four
provided by 20, 1926, plain- as On October the statute.” “ tiff her addressed Town by notice, counsel sent a new
Leon 11 Winthrop Guptill, Esq., Clerk Town of C. c/o
Beacon reads: “You are Boston, Mass.,” Street which
Washington hereby Mary notified that Mrs. Brown of 376
in Street, Lynn, injured by was reason of defect the side-
in Street, walk front of 440 Revere on that Winthrop,
Sunday evening, of the on October street, 5, 1926, side 
p.m., damages between 6.30 and and by claims reason 7

46 V. BROWN WINTHROP. [275
of said defect.” On 21, October 1926, counsel for the
defendant wrote the counsel for the as plaintiff follows:
“ Your letter of October 20th is I note that received.
the date of this accident Sunday was evening, 5, October
1926. I shall assume unless I hear you from the to
contrary that the date actually was October 3 and that
the fifth is a typographical error in your notice.”
' The letter dated 20, 1926, October supra, was not
upon served or sent to the town clerk, treasurer, or one of
the selectmen of Winthrop, L. 84, 19, as G. c. provides §
shall be done 84, when the required by notice G. L. c.
§ 18, is sent to a town. It was therefore invalid as a
notice to the defendant town. Cambridge, O’Connell v.
258 Mass. 203.
letter of 11, If the October and 1926, the letter of
1926, be 20, considered as properly October it is served,
on that inspection obvious neither of them gave the
alleged injury cause of the other than to state the that
“ injured by was reason in plaintiff of defect the side-
a walk.” That such notice of injury cause of a upon
public way is insufficient is by many settled decisions.
Lawrence, Noonan v. 130 Mass. 161. Miles 130 Lynn, v.
Railroad, Mass. Dickie v. Albany 398. Boston 131 &
Salem, Mass. 516. Dalton v. 131 Mass. 551. Shea v.
Lowell, Springfield, 132 Mass. 187. Miller v. 177 Mass.
Everett, v. Compare Bailey 373. 132 Mass. 441; Lifjin
Beverly, v. 145 549. It equally Mass. is the obvious that
notice did not comply new with the law as to the cause
injury of the and that original the notice remains insuffi-
if the second notice cient be considered a part of it. St.
1894, c. 389. G. L. 84, § c. 20. The failure to state the
of in cause the accident either notice was an omission, and
not inaccuracy an which the plaintiff might by proof meet
that there was no intention to mislead, and that the de-
fendant was not in fact misled. L. 84, G. c. 18. Tobin §
Brimfield, v. 182 Boston, Mass. 117. Bowes v. 155 Mass.
344. Gardner Weymouth, v. 155 Mass. 597. 595, Dooling
Malden, v. 258 Mass. 572. 570,

47 V. BROWN WINTHROP. Mass.]
a condition 18, L. is by 84, § The notice G. c. required
L. under G. action right to the maintain an precedent to
Gay v. by city or town. and cannot be waived 84, 15, § c.
Lowell, supra. Sub- Cambridge, 128 Shea v. Mass. 387.
of the ject defendant, to at the close exception the of the
agreed at a judge having “It been evidence the stated:
given as to the time legal former trial that a notice was
as parties and town and the place of this accident to the
by parties I both understand from what has been said
but accident, did not to exclude the cause of the intend
legal agreed it that a intended and understood that was
the and cause of given time, place notice was as to the
agree- I that that accident, will rule as a matter of law
having ment in at the trial is open been made court first
of binding opinion effective and at this trial.” We are
that in ruling by Gray, C.J., the was error. It was said
Bowker, Moulton at 40: “An at- 36, page v. 115 Mass.
torney at law has authority, by employment virtue of his
to in such, as do behalf of his client all in or of acts, out
court, necessary or prosecution incidental to the and
management suit, remedy of the and which affect the
only, and not the cause of action.” See also Morton, C.J.,
Lowell, in supra. Shea v. The waiver of the notice re-
quired by the statute went the of to root the plaintiff’s
right of and in action, merely no sense was it incidental
existing right. the of an proof respects, to As the sub-
notice, stance of the the did good concession not create a
notice or a defective notice that could have been cured
of proof had the notice not been waived. It that follows
exceptions rulings judge the to the of the must be sus-
tained, that the for a directed motion verdict should have
allowed, judgment been and that for the defendant shall
be entered. now
So ordered.