(dissenting). I agree with the opinion of the Appeals Court ordering a new trial. Mulhern v. Roach, 20 Mass. App. Ct. 322 (1985).
This case involves no new issue of law. The appellate function is essentially one of assessing a record to determine whether the judge’s findings and conclusions were warranted on the record. The Appeals Court concluded, with firm conviction, that a mistake had been made, id. at 331, and it ordered a new trial. Any further review in this court simply involves us in second guessing the Appeals Court. Such a case particularly commends itself to the denial of any application for further appellate review.