Casner v. Resnik
| Decision Date | 20 July 1920 |
| Citation | 111 A. 68,95 Conn. 281 |
| Court | Connecticut Supreme Court |
| Parties | CASNER v. RESNIK et al. |
Appeal from Court of Common Pleas, New Haven County; Earnest C Simpson, Judge.
Summary process by Isadore W. Resnik and others against Edward H Casner. From a judgment for plaintiffs, defendant brought error to court of common pleas, which ordered a new trial and plaintiffs appeal. Error, judgment of court of common pleas reversed, and cause remanded, with directions to enter judgment for plaintiffs.
The plaintiff's action in summary process was based on an alleged failure to pay the rent due for August, September and October, 1919. The defendant pleaded tender. On the first trial the jury found for the defendant, but a new trial was ordered by the court of common pleas. Before the second trial the defendant filed a second defense in the nature of a plea puis darrein continuance, alleging payment; to which the plaintiff replied that the payments were not made and received as rent, but by express agreement were for use and occupation, and without prejudice to the case then pending in the court of common pleas. On the second trial the jury found for the plaintiff, the defendant brought a writ of error to the court of common pleas, and a new trial was again ordered for errors in the charge. From the judgment of the court of common pleas, the plaintiff appeals.
Charles J. Martin, of New Haven, for appellants.
Charles S. Hamilton and Charles F. Roberts, both of New Haven, for appellee.
The plaintiffs claim that the writ of error ought to be dismissed because the trial justice had no jurisdiction to allow a bill of exceptions after 48 hours from the acceptance of the verdict is overruled. In Brodner v. Swirsky, 86 Conn. 32, 84 A. 104, 42 L.R.A. (N. S.) 654, we said of section 6128:
The 48 hours measures the length of the statutory stay of execution, and is not a limitation on the jurisdiction of the justice to allow a bill of exceptions.
The defendant claims that the reasons of appeal do not comply with the statute and rules of court, because they are general and indefinite, alleging merely that the court of common pleas erred in finding error in the charge of the justice to the jury. If the plaintiff were appealing directly from the judgment of a trial court, the objection would be well taken; but the issues of law presented by this appeal had already been formulated by the assignments of error in the writ of error, and the plaintiff's plea of nothing erroneous. Nothing is to be gained by attributing specific errors to the court of common pleas, for, while the question directly presented is whether that court erred in finding error in the record of rulings of the justice court, that question must be answered by inquiring whether the trial justice erred in any of the respects alleged in the writ of error. If so, the judgment of the Court of Common Pleas must be affirmed, even though that court might happen to be wrong in the reasons given for its judgment. In fact, the questions presented by this appeal are the same as those presented to the court of common pleas by the writ of error, and the only difference is that the duty of going forward has been shifted upon the defendant in error by the judgment of that court.
On the merits the case is not entirely free from doubt. The charge, as it appears on the record, is in many places grammatically incomplete, and the defendant has selected phrases and sentences which require correction by the addition or transposition of words. But we think the errors are literary rather than legal.
There were two main issues raised by the pleadings and evidence: Whether the defendant had made an unconditional tender of the rent due for August, September, and October, 1919, and whether the subsequent payments admittedly made in November, January, and February were tendered and accepted as rent under the lease, or, as the plaintiff alleged and testified, under an express stipulation that they were merely for use and occupation and without prejudice to the plaintiff's writ of error then pending in the court of common pleas.
On the first issue the trial justice, after quoting the statute, said:
" In other words, that if the defendant went to the plaintiff to pay his rent, he could ask for a receipt, but he could not annex any conditions of what it was for, other than a...
To continue reading
Request your trial
-
City of Bridgeport v. Barbour-Daniel Electronics, Inc.
...new tenancy at will by an agreement of the parties; see, e.g., Borst v. Ruff, supra, 137 Conn. at 362, 77 A.2d 343; Casner v. Resnick, 95 Conn. 281, 286-87, 111 A. 68 (1920); Fort Orange Barbering Co. v. New Haven Hotel Co., 92 Conn. 144, 153, 101 A. 505 (1917); Hartford Wheel Club v. Trave......
-
Zitomer v. Palmer, 1158
...for use and occupation. If the tenant paid the money after that notification, the status quo was preserved." Casner v. Resnik, 95 Conn. 281, 287, 111 A. 68 (1920). Moreover, in addition to use and occupancy, the prefixed language seeks to set off late tenders against costs and attorneys' fe......
-
Webb v. Ambler
...bill of exceptions allowed and as not preventing the issuance of a writ even in behalf of a defendant after that period. Casner v. Resnik, 95 Conn. 281, 283, 111 A. 68. writ of error to this court must be served at least thirty days Before the day of the sitting of the court. General Statut......
-
Eastern Oil Ref. Co. Inc. v. Court Of Burgesses Of Wallingford
...theory does not render it erroneous. Conn.App.Proc. § 18; Thompson v. Coe, 96 Conn. 644, 652, 115 A. 219, 17 A.L.R. 1233; Casner v. Resnik, 95 Conn. 281, 283, 111 A. 68; Slade v. Zeitfuss, 77 Conn. 457, 461, 59 A. 406; Kelley v. Board of Zoning Appeals, 126 Conn. 648, 653, 13 A.2d 675. A fu......