City of Mertden v. W. Meriden Cemetery Ass'n

• Decision Date: 14 June 1910
• Citation: 76 A. 515,83 Conn. 204
• Parties: CITY OF MERTDEN v. WEST MERIDEN CEMETERY ASS'N.
• Court: Connecticut Supreme Court

76 A. 515

83 Conn. 204

CITY OF MERTDEN

v. WEST MERIDEN CEMETERY ASS'N.

Supreme Court of Errors of Connecticut.

June 14, 1910.

Appeal from City Court of Merideu; Frank S. Fay, Judge.

Action by the City of Meriden against the West Merideu Cemetery Association. From a judgment in favor of defendant, plaintiff appeals. Reversed, and judgment ordered for plaintiff.

Action to recover the cost of furnishing and setting a curb on Orange street, in front of and abutting the defendant's property, brought to the city court of Meriden, where, after a demurrer to a special defense had been overruled, the case was tried to the court, and judgment rendered for the defendant. The plaintiff appeals, alleging error in the overruling of the demurrer and in the rulings of the court upon the trial.

H. T. King, for appellant.

E. A. Merriman, for defendant.

THAYER, J. Pursuant to the plaintiff's charter (8 Sp. Laws, p. 296), its court of common council passed the following orders, which were duly approved by its mayor:

"Ordered, that the property owners on both sides of Orange street, from Cook avenue to Hanover street, be and they are hereby ordered to set a 20-inch curb, with curbed corners at all street intersections; and the property owners on the south side of Orange street, from Cook avenue to Hanover street, be and they are hereby ordered to relay the present flag walk. All work to be completed to the lines and grades recently established and to the satisfaction of the board of public works by August 1, 1908, and if not done the board of public works are hereby authorized and instructed to have the work done at the cost of the delinquents.

"Ordered, that the board of public works be and they are hereby instructed to cobble the gutters on both sides of Orange street, from Cook avenue to Hanover street, as soon as possible after curbs are set as above ordered."

The defendant is one of the property owners on the north side of Orange street, between Cook avenue and Hanover street it refused to set the curb as ordered. The charter provides that, when any proprietor shall neglect to curb a sidewalk or gutter in the manner and within the time directed by the court of common council, the latter may cause the same to be done and order the same to be paid by the proprietor, and that the amount may be recovered in an action of assumpsit brought in the name of the city. 8 Sp. Laws, pp. 325, 326, §§ 54, 55. Upon the neglect of the defendant to set the curb within the time fixed, the court of common council caused it to be done at a cost of $476.47, which is found to be reasonable, and, the defendant having refused to pay the amount to the person appointed to collect it, this action was brought to recover it.

The defendant is a corporation owning and controlling the land in question, which consists of 6 1/2 acres in the thickly settled part of the city of Meriden used exclusively as a cemetery or public burying ground. The cemetery contains 588 lots, and the right to bury the dead in these lots has long since been disposed of to individuals by the defendant. The defendant is possessed of a fund which is deposited in banks and was attached in the present action. The defendant claims that, as its land is used exclusively for a public burying ground, it was not bound to obey the order to set the curb in front of its premises, and is not liable to the plaintiff for the cost of setting it. The trial court sustained this contention in its rulings upon the demurrer and upon the final trial, and these are the rulings brought in question upon this...