Goldberg v. Callender Bros., Inc.

• Decision Date: 10 June 1920
• Docket Number: 783.
• Citation: 95 Conn. 69,110 A. 457
• Court: Connecticut Supreme Court
• Parties: GOLDBERG et al. v. CALLENDER BROS., INC.

110 A. 457

95 Conn. 69

GOLDBERG et al. v. CALLENDER BROS., INC.

No. 783.

Supreme Court of Errors of Connecticut.

June 10, 1920

Error from City Court of Hartford; Herbert S. Bullard, Judge.

Summary process by Isador E. Goldberg and another against Callender Bros., Incorporated. An order erasing the case from the docket was entered on defendant's motion, and plaintiffs appeal, and also bring error. Appeal erased, and no error found.

The appellants in the first of the above-entitled actions and the plaintiffs in error in the other brought to the city court of Hartford an action of summary process against the appellee and defendant in error respectively to obtain possession of certain premises in Hartford occupied by the latter under a written lease thereof for a term of 10 years from July 1, 1914. Their complaint alleged the execution of the lease, the entry of the lessee into possession under it, and their continued possession up to the present time. The lease which was annexed to and made a part of the complaint contained, among others, the following covenants:

(1) " If default shall be made in any of the covenants herein contained and to be kept and fulfilled on the part of the said party of the second part, then it shall be lawful for the said party of the first part at any time after such neglect or default and without previous demand or notice whatever to re-enter and take possession of said leased premises and such re-entry and taking possession shall forthwith end and terminate this lease."

(2) " It is hereby agreed that the premises herewith leased shall be used only as a saloon and liquor establishment, and this instrument is conditioned upon said agreement which shall be a condition precedent to the operation of this lease."

(3) " The privilege is hereby given to the said party of the second part to assign or underlet said premises during said term."

The complaint further alleged that the lessee did, on or about February 9, 1920, sublet the premises to other parties for the purpose of conducting a boot and shoe store therein; that subsequent to the execution and delivery of the lease, to wit, on or about July 1, 1919, the sale of intoxicating liquors became illegal and a nuisance; that on January 16, 1920, such sale became illegal by virtue of the express provision of the Eighteenth Amendment of the federal Constitution; that by reason of said provisions of law the lease became void by operation of law; that by reason of the said subletting and of the law forbidding the sale of intoxicating liquors the lease had, by virtue of its express stipulations, expired and terminated; that the complainants had re-entered and taken possession of the leased premises for the purpose of terminating the lease, and that thereby the lease became terminated; and that the lessee refuses to quit possession of the premises, and still holds possession thereof.

John J. Dwyer, of Hartford, for appellants and plaintiffs in error.

Francis P. Rohrmayer, of Hartford (John T. Robinson, of Hartford, on the brief), for appellee and defendant in error.

PRENTICE, C.J.

The plaintiffs, in the summary process action brought to the city court of Hartford against their lessees under a written lease to recover possession of the leased premises having failed in that proceeding, and desiring a review by this court of the city court's action in erasing it from the docket, took an appeal to this court, being the first of the two above-entitled cases. This course, as applicable to a summary process action, was mistaken and unauthorized. Gen. Stat § 6122. Correction of errors committed by a...