Hillyer v. Borough of Winsted
| Citation | 77 Conn. 304,59 A. 40 |
| Court | Supreme Court of Connecticut |
| Decision Date | 11 November 1904 |
| Parties | HILLYER v. BOROUGH OF WINSTED. |
Appeal from Superior Court, Litchfield County; Alberto T. Roraback, Judge.
Action by Mary E. Hillyer against the borough of Winsted. Verdict for plaintiff, and defendant appeals. Affirmed.
Charles E. Perkins and Samuel A. Herman, for appellant.
Wellington B. Smith and Frank B. Munn, for appellee.
BALDWIN, J. Section 45 of the defendant's charter (12 Sp. Laws, p. 769) provides that "all claims against the borough shall be presented to, and passed upon by, the warden and burgesses of said borough, and the warden shall not draw any order for any claim, except judgments, unless approved of by said board." The complaint was not demurrable because it did not allege that the plaintiff's claim for damages was so presented. The object of the section evidently was to prevent the warden from drawing orders to pay claims which had not been brought before the burgesses. Presentment to him and them was not expressly made a condition precedent to bringing suit upon them, and, in view of the exception as to judgments, no such condition can be implied.
Nothing else was assigned as cause of demurrer which was not also the subject of objections taken upon the trial to the jury; and these can better be considered in connection with the exceptions to the charge. Mechanics' Bank v. Woodward, 74 Conn. 689, 51 Atl. 1084. That part of the answer which set up the omission to present the plaintiff's claim to the warden and burgesses was properly expunged. As to that point the defendant had already been heard. Parties cannot be permitted to waste the time of courts by the repetition in new pleadings of claims which have been set up on the record and overruled at an earlier stage of the proceedings. The residue of the second defense, which was adjudged insufficient, was merely an amplification of the denial, in the first defense, of the plaintiff's averment that the defendant was bound to keep the sidewalk in question in repair. The facts as to this point, also, were more fully brought out on the final hearing, and as then presented showed that this defense could not be maintained. No Injury was, therefore, done to the defendant by this ruling on demurrer, and it is unnecessary to inquire whether it was technically correct.
Section 26 of the defendant's revised charter (12 Sp. Laws, p. 763) provides that "the warden and burgesses shall have control of all sidewalks, crosswalks, and footpaths in the streets of the borough, but not of the construction and repairs of the highways." They are also "empowered * * * to designate, alter, fix and establish the width, course, height, grade, and level of the sidewalks, cross-walks, footpaths, and curb lines in said borough, and to order the owner or owners of lands or buildings fronting upon highways and streets in said borough to make such walks on their several fronts according to the width, height, and grade designated as aforesaid, also to curb, flag, and pave the same on such line in such manner and place, and with such material as the warden and burgesses * * * shall direct; and also to order such owners to provide and erect such railings or guards along the sidewalks in front of their premises as public safety may require; and also to order any such proprietor to repair his sidewalk, curb, guard or railing, as aforesaid, when such repairs shall be necessary to be done, within such time and in such manner as said warden and burgesses * * * may designate and direct"; and "to pass ordinances requiring the building of sidewalks, as aforesaid, including the curbing thereof, and the proper care of the same." Section 27 (page 765) reads thus: "All crosswalks (walks crossing any alley, turnpike, or highway), and such portion of any sidewalk as shall cross Mad river, Still river, or such other bodies of water or streams, or over or under any railroad, that have by said...
To continue reading
Request your trial
-
State v. Mariano
...in new pleadings of claims which have been set up on the record and overruled at an earlier stage of the proceedings.' Hillyer v. Winsted, 77 Conn. 304, 306, 59 A. 40; see Wiggin v. Federal Stock & Grain Co., 77 Conn. 507, 516, 59 A. 607. Under the circumstances, the court on the trial was ......
-
Beaudoin v. Town Oil Co., Inc., 13296
...new pleadings of claims which have been set up on the record and overruled at an earlier stage of the proceedings.' Hillyer v. Winsted, 77 Conn. 304, 306, 59 A. 40 (1904)." Friedlander v. Friedlander, 191 Conn. 81, 89, 463 A.2d 587 Despite these principles of policy, the plaintiff, at oral ......
-
Varley v. Varley
...new pleadings of claims which have been set up on the record and overruled at an earlier stage of the proceedings." Hillyer v. Winsted, 77 Conn. 304, 306, 59 A. 40 (1904). The defendant next claims that the court erred on March 9, 1979, in taking up her claim for a jury trial, when such a m......
-
Good Humor Corp. v. Ricciuti
...sustained where the allegations of such complaint appear to be the same, in substance, as the one which was stricken. Hillyer v. Winsted, 77 Conn. 304, 306, 59 A. 40; 1 Stephenson, Conn.Civ.Proc. (2d Ed.) § 113(d). The demurrer to the original complaint was sustained on the ground that the ......