No requests for rulings were presented at the hearing on the merits of this action of contract. It was decided in favor of the plaintiff on April 3, 1929. The defendant seasonably filed a motion for a new trial, which was heard and denied on September 18, 1929. On the following day a second motion for a new trial was filed, the only ground alleged being “to prevent a possible failure of justice.” The judge heard both parties de bene on this second motion and received de bene numerous requests for rulings, which he thereafter declined to entertain or act upon. He later declined to entertain the second motion for new trial and at the request of the defendant reported the correctness of this ruling to the Appellate Division.
The hearing de bene of the second motion was not the exercise of judicial discretion in favor of entertaining the motion. The. entire subject was left open for such final judicial action as seemed wise. Clarke v. Fall River, 219 Mass. 580, 586.
It is apparent from the frame of the second motion and the tenor of the requests for rulings that the attempt of the defendant was to present anew on this second motion questions which as matter of right could be presented only at the trial on the merits. That cannot be done as of right. Energy Electric Co., petitioner, 262 Mass. 534, 538, and cases cited.
The defendant had presented one motion for a new trial, which had been fully heard and decided. The second motion discloses nothing requiring judicial action. If *20it be assumed that under appropriate conditions a second motion of this nature may be considered by the court, there is nothing on the record to indicate error in the refusal to entertain it in the case at bar. Commonwealth v. Ruisseau, 140 Mass. 363, 365. Waucantuck Mills v. Magee Carpet Co. 225 Mass. 31, 33. Davis v. Boston Elevated Railway, 235 Mass. 482, 496, 497. See Clark v. McNeil, 246 Mass. 250, 256, 257.
Order dismissing report affirmed.