Appeal of Cohen

• Decision Date: 20 June 1933
• Citation: 117 Conn. 75,166 A. 747
• Court: Connecticut Supreme Court
• Parties: Appeal of COHEN et al. Appeal of FEINBERG et al. Appeal of GOLDBERG.

166 A. 747

117 Conn. 75

Appeal of COHEN et al. Appeal of FEINBERG et al. Appeal of GOLDBERG.

Supreme Court of Errors of Connecticut.

June 20, 1933

Appeal from Court of Common Pleas, Hartford County; Thomas J Molloy, Judge.

Proceedings by the Board of Street Commissioners of the City of Hartford against Louis Cohen and others, against Louis Feinberg and others, and against Abraham D. Goldberg, for the assessment of benefits for street widening in which appeals to court were referred to a committee. The court overruled remonstrances of property owners named to the committee's report, and accepted the report and rendered judgment in accordance therewith, and the property owners appeal.

Error in form of judgments alone, judgments set aside, and cases remanded with direction.

Reuben Sudarsky, Henry J. Marks, and Charles Sudarsky, all of Hartford, for appellants Cohen et al.

Robert P. Butler, of Hartford, for appellants Feinberg et al. and Goldberg.

Milton D. Newman, of Hartford, for appellant Goldberg.

Francis W. Cole and John C. Parsons, both of Hartford, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

MALTBIE, Chief Justice.

The plaintiffs appeal from an assessment of benefits resulting from the layout of new street and building lines along a portion of Main street in the city of Hartford. Under the charter, the appeals were taken to the judge of the court of common pleas for Hartford county and were by him referred to a committee. The matter comes before us upon appeals taken from his judgments accepting the reports of the committee and fixing the damages and benefits as found by him. A considerable number of properties were affected by the proceedings, there were about forty-one appeals to the judge of the court of common pleas, thirteen of these were withdrawn, and the others were divided between appeals taken from awards of damages, by various lessees of buildings or portions thereof upon the lands affected, and appeals taken from the assessment of benefits. The cases before us fall within the latter class. The committee first took up for hearing the appeals from the awards of damages and after he had concluded them he heard those taken from the assessments of benefits. The charter provides that, " when separate appeals are taken by different parties from one assessment and appraisal all such appeals shall be heard and tried as one cause." 7 Special Laws 1873, p. 527. This provision has its basis in practical necessity, because the charter also provides that if, upon any appeal, the judge or committee hearing it shall find cause to alter the appraisal or assessment, he shall proceed to reapportion the whole amount of damages and benefits upon the persons or land specially benefited. 7 Special Laws, 1873, p. 527. It would hardly be feasible to carry out this provision if each appeal were separately determined.

The committee began his work by summoning to a conference all the attorneys representing interested parties and at that conference made certain assignments by days to hear some of the appeals from the awards of damages, but made no such assignments to hear appeals from the assessments of benefits. When he was ready to take up the latter, he held another conference with the attorneys of interested parties. At this he suggested that the issues as to whether or not there were any benefits to the properties affected, and if so the percentage or percentages of values to be used, were general and could be heard at one time, leaving individual matters as to the value of each particular piece to be heard separately; or, as he stated it later, that there was no particular reason for having the witnesses for the city testify in each case as to their reasons for fixing values and for a benefit and its amount and that the evidence as to these matters could be heard at one time for all case. To this statement there was no dissent. The committee also stated that it was customary for the appellants to present their evidence first, and he proceeded to assign some of the appeals for hearing on days certain and at once began hearing one of the appeals, that of Julius Gold and others.

Upon the filing of his reports remonstrances were filed in the various appeals and the transcript of the entire record before the committee, as the trial judge states, was available for reference by counsel in argument and was submitted to him in considering and ruling upon the points raised in the remonstrances. When he filed his memorandum of decision, he recited in it the statements made by the committee at the conference with attorneys which we have summarized above, and ruled that the evidence of the real estate experts given in any appeal was available in passing upon the remonstrance in each appeal. After his memorandum of decision was filed, the appellants now before us made motions for reargument upon the ground that this ruling of the judge was erroneous, but in his memorandum of decision upon the motions the trial judge states that the argument upon them developed into a reargument of the original remonstrances and he refused to change his decision. The appellants have assigned as error the use by the trial judge in deciding each appeal of evidence offered upon the hearings of other appeals, except that of Julius Gold and others, and those as to which they state in their assignments of error special agreements were made.

Compliance with the charter provision that all appeals are to be heard and tried as one case would make the evidence offered upon any appeal, when relevant, proper for consideration in determining each appeal. When there are as many appeals from a single appraisal and assessment as occurred in this instance, no doubt this may impose a heavy burden upon each appellant, to be represented at the hearing of all appeals, but if so, this is an incident of the procedure established by the charter and the remedy, if any, does not lie in the power of the court. If there was error in the use by the trial judge in determining the cases before us of evidence offered at the hearing of other appeals than those recognized as applicable in the assignments of error, it must be because of some understanding between the committee and counsel evidenced by the circumstances we have recited and the course of procedure actually followed consequent thereon. The memorandum of the judge discloses that he considered only evidence offered upon the appeals from the assessment of benefits, and we may restrict ourselves to that evidence. The suggestions made by the committee as to the course of procedure to be followed were vague and indefinite, particularly in view of the fact that the procedure followed called upon the appellants to go forward first with their evidence, and it was not suggested that the evidence offered by the defendants upon the general issues outlined by the committee should be heard at any particular time. The assignments of error, by excepting the first appeal heard from the appellants claim that evidence taken upon other appeals should not have been considered, indicate that they regarded this appeal as being the occasion when the city would offer evidence upon these general issues, but the committee's suggestion does not indicate this, but rather that he had in mind an occasion which would be apart from the consideration of any particular appeal. However that may be, we are not apprised in any way which we regard as authoritative as to the procedure which was actually followed. Nor can we entirely absolve counsel for the appellants of their share of responsibility for the situation which has developed. Confronted with so indefinite a suggestion for future procedure, surely they should have sought a definite understanding as to the course to be followed, and, if they now find that the course which was actually taken did not accord with that which they anticipated, it is difficult to see where they can place the whole blame upon the committee or the attorneys for the city.

In each of these appeals the report of the committee consisted merely of a statement that the plaintiff owned certain premises at the date of the taking of the property for the widening of the street; that the land had a certain value as of that date; and that the plaintiffs were benefited in a certain sum. The plaintiffs in each case filed a rather long remonstrance, in which they did not seek additions to the report of the committee or ask its recommittal. They did make some indefinite claims that the committee erred in certain matters of law, but these claims did not accord with our rule that a remonstrance must specifically state the errors which it is claimed were committed at the hearing before the committee, and they will be disregarded. Liefeld v. Coffin, 103 Conn. 279, 284, 130 A. 576.

The contention made in one of the appeals before us, that the committee erred in basing the assessment of benefits upon the value of the land exclusive of any buildings, does not appear in the remonstrance; indeed, so far as the record shows, it was never made before he committee despite the fact that early in the hearing of the appeal of Gold and others, the first appeal heard, he suggested that he would probably follow the rule he finally adopted. The only ground of remonstrance requiring consideration is that the finding of the committee as to the amount of benefits in each case was not supported by the evidence.

If upon the hearing of the remonstrances, the trial judge concluded that, giving to the evidence the effect to which it was entitled in law, the conclusions of the committee were reasonable supported, the trial judge had no choice except to overrule the remonstrances. Heublein, Inc., v. Board of Street...