Creelman v. Rogowski

• Decision Date: 09 February 1965
• Citation: 152 Conn. 382,207 A.2d 272
• Court: Connecticut Supreme Court
• Parties: Henry L. CREELMAN, Jr., et al. v. Frank A. ROGOWSKI et al. Supreme Court of Errors of Connecticut

Page 272

207 A.2d 272

152 Conn. 382

Henry L. CREELMAN, Jr., et al. v. Frank A. ROGOWSKI et al.

Supreme Court of Errors of Connecticut.

Feb. 9, 1965.

Berkeley Cox, Jr., Hartford, with whom was H. David Leventhal, Hartford, for appellants (plaintiffs).

William M. Krug, Willimantic, for appellees (defendants).

Before KING, C. J., and MURPHY, ALCORN, COMLEY and SHANNON, JJ.

COMLEY, Associate Justice.

This action was brought by the plaintiffs, husband and wife, against the defendants, also husband and wife, to recover damages for alleged false representations, express or implied, in the sale of a dwelling house and lot. The plaintiff wife, although present in court, did not testify, and, at the conclusion of the plaintiffs' case, the court granted a nonsuit against her. She has appealed from the refusal of the court to set the nonsuit aside, but we cannot review this ruling since she has failed to print the evidence, or a statement of it, in the appendix to her brief.

The defendants rested their case without offering any evidence. From the judgment rendered in their favor the plaintiff husband has appealed. We summarize the finding as follows: The defendants owned a dwelling house at 288 Fairfield Avenue in Hartford. It was in a B residence zone where dwellings for more than two families are prohibited unless a variance or a special exception is obtained. In the summer of 1960, the defendant were informed by a building inspector that their own personal occupancy of one apartment and the rental of two others, making a total of three families within the building, was a violation of the zoning regulations. In the summer of 1961, the defendants placed an advertisement in a Hartford newspaper for the sale of their property which read as follows: 'FAIRFIELD AVE. 288 Two, three room furnished apartments, 6 room apartment, for owner. Call JA 2-7764.' This advertisement came to the attention of the plaintiffs. During negotiations for the sale of the property, the plaintiffs inspected the property and observed that in addition to the three apartments which were advertised and were on the first two floors, there was also additional space on the third floor. The defendant wife told the plaintiffs that the additional space on the third floor could not be rented as a fourth apartment unless a zoning variance was obtained. The defendants did not represent to the plaintiffs that the existing occupancy of three apartments constituted a legal use. On the other hand, they did not disclose that such occupancy was a zoning violation. The plaintiff husband did not rely on any representations, express or implied, as to zoning. Before the purchase, the plaintiff husband was told by the clerk of the zoning board of appeals that the property was in a B residence zone and could not be occupied by four families unless a variance was obtained.

It...