Genuario v. Finkler

• Decision Date: 07 March 1950
• Citation: 136 Conn. 500,72 A.2d 57
• Court: Connecticut Supreme Court
• Parties: GENUARIO et al. v. FINKLER et al. Supreme Court of Errors of Connecticut

Page 57

72 A.2d 57

136 Conn. 500

GENUARIO et al. v. FINKLER et al.

Supreme Court of Errors of Connecticut.

March 7, 1950.

Richard S. Weinstein, South Norwalk, with whom was Sidney Vogel, South Norwalk, for the appellants (defendants).

John Keogh, Jr., South Norwalk, with whom, on the brief, were Frank J. Culhane Danbury and Raymond T. Benedict, Norwalk, for the appellees (plaintiffs).

Before MALTBIE, C. J., and BROWN, JENNINGS, DICKENSON and BALDWIN, JJ.

MALTBIE, Chief Justice.

In this appeal by the defendants from a judgment for the plaintiffs in a trial to the jury, the principal claim is that the complaint, in which a conversion of certain money was alleged, was an improper basis for a recovery in the action.

The deceased, Louis Klein, of whose estate the plaintiffs are executors, had a savings bank deposit in his own name. He withdrew it and immediately redeposited it in the names of the defendant Mrs. Gruber and himself, under this designation: 'Louis Klein or Mildred Gruber, payable to either or the survivor.' Thereafter Mrs. Gruber, both during Klein's life and after his death, made withdrawals from the account. The action was brought to recover damages on the basis that she had no right to the money so withdrawn. The complaint was in two counts; the first alleged a conversion of the money by Mrs. Gruber, a conversion in which the other defendant participated; and the second alleged that the two conspired to deprive Klein and his estate of the money. The trial court instructed the jury to disregard the second count and charged them that the controlling issue was whether or not Klein made a gift of the money in the account to Mrs. Gruber. The principal contention of the defendants is that as Klein and Mrs. Gruber were joint owners of the bank deposit, the only proper form of action would be one for an accounting. To that contention there are two answers: The first is that no such claim was made at the trial and there is no sufficient reason in this case why we should depart from the usual rule that we will not consider claims not raised at the trial. Conn.App.Proc. § 44. That rule is particularly applicable to a claim that the complaint was defective which was not raised until after the case had been fully tried and decided. Foster v. Balch, 79 Conn. 449, 453, 65 A. 574; Meyers v. Arm, 126 Conn. 579, 582, 13 A.2d 507. The second answer is that the plaintiffs did not bring their action to recover on the ground that the bank deposit was jointly owned by the deceased and Mrs. Gruber; their claim was that Mrs. Gruber had no logal right to the money in the account, and by their verdict the jury so found.

The only other assignment of error presented to u...