This is a petition to establish a report, which this Division, after hearing counsel for both sides, referred to one of its members. That justice interviewed counsel and the trial judge, and has concluded the following:
The trial judge determined at a hearing on the first draft report that all the material evidence was not set out in the draft report and ordered changes and additions.
The petitioner did file an amended draft report which included evidence omitted from the first draft report, but failed to set out in full the material evidence as the trial judge had ordered.
The trial judge disallowed the claim of report and filed a disallowance setting out his reasons. The petitioner did not include evidence in the amended draft report as the trial judge remembered it and on which he based his decision.
This Division, as a result of the above and an inspection of the record in this case, must deny the petition to establish the report.
An Appellate Division is empowered to consider only the first draft report filed by *193the petitioner. Hinckley v. Boston Elev. Ry. Co., Vol. 53, Appellate Division Reports, Page 370 B.M.C. Weinberg v. Leyton School of Dental Lab. Tech., 6 Mass. App. Dec. 89.
William Shaughnessey for the Petitioner. Charles Colson for the Respondent.It is bound to give due weight to a statement made by the trial judge unless rebutted or explained or overcome by evidence.
While the original draft report which the petitioner now seeks to have established contains the required statement “this report contains all the evidence material to the question reported,” yet, obviously this is not so as an examination of the amended draft report discloses evidence omitted from the first draft report.
This Division is unable to establish the petitioner’s draft report as it failed to report the entire evidence in the first instance, and then failed to comply with the court’s order to report the evidence as the trial judge ordered.
Petition to establish report is denied.