Leo Foundation v. Cabelus

• Decision Date: 26 May 1964
• Citation: 201 A.2d 654,151 Conn. 655
• Court: Connecticut Supreme Court
• Parties: The LEO FOUNDATION v. Bernard E. CABELUS, Building Inspector of the Town of Berlin. Supreme Court of Errors of Connecticut

Page 654

201 A.2d 654

151 Conn. 655

The LEO FOUNDATION v. Bernard E. CABELUS, Building Inspector of the Town of Berlin.

Supreme Court of Errors of Connecticut.

May 26, 1964.

Anthony I. Wells, New Haven, for appellant (plaintiff).

James F. Dawson, New Britain, for appellee (defendant).

Before KING, C. J., MURPHY, ALCORN and COMLEY, JJ., and HOUSE, Acting justice.

MURPHY, Associate Justice.

The plaintiff, a corporation, operates a private school in Berlin. The sole defendant is the town building inspector. The plaintiff seeks both prohibitory and mandatory injunctive relief against the defendant in his official capacity and at the same time maintains that the town does not have a legally appointed building inspector. In addition, the plaintiff seeks a judgment declaring that the building code is invalid and that the town does not have a legally appointed building inspector. Finally, the plaintiff asks for a judgment validating a 1959 building permit which expired one year after date of issuance. The court concluded that the plaintiff was not entitled to the relief sought and rendered judgment for the defendant. The plaintiff has appealed.

Of the three assignments of error seeking corrections in the finding, the plaintiff has briefed only two and those only in part. The claims of error not briefed are considered to have been abandoned. West Realty Co. v. Ennis, 147 Conn. 602, 603, 164 A.2d 409. The claims of error which were briefed will be discussed later.

The unchallenged findings of fact recite that the plaintiff obtained a building permit on July 19, 1959, from the town engineer for the erection of a school building. The permit stated that it was void one year from date of issue. The permit was not renewed or extended. The foundation of the building was laid in 1959, but the major portion of the construction work was done after the permit expired. On March 12, 1960, the defendant was appointed building inspector by the board of selectmen. Thereafter, on three occasions prior to November 9, 1962, he sought to have the plaintiff obtain permits for work done on the building after the 1959 permit expired. On November 9, 1962, the plaintiff applied to the defendant for a new building permit to complete the construction of the building or, in the alternative, to extend the original permit to allow completion of the construction of the building. The plans for the building did not carry the seal required by General Statutes § 20-293 as a prerequisite to the issuance of a permit.

From these facts, the court was justified in concluding that the plaintiff was not entitled to a prohibitory injunction restraining the defendant from requiring the plaintiff to obtain permits for the work done on the building after the 1959 permit expired or to a mandatory injunction requiring the defendant to issue a new building permit as prayed for in the complaint as amended. Furthermore, the allegations in the amendment to the complaint state that it is the belief of the plaintiff that the defendant has no right to require the plaintiff to obtain permits for the work accomplished without permits nor to refuse to issue a new permit until the past due permits are obtained. An injunction is a harsh remedy. Where the application is based on information and belief without any clear and positive averment of facts sufficient to warrant the relief sought, it will not be granted. Wells v. Bridgeport Hydraulic Co., 30 Conn. 316, 323; 1 High, Injunctions (4th Ed.) §§ 34, 35.

The finding does not contain any claims of law raised by the plaintiff in the trial court which it desires to have reviewed on appeal. Practice Book, 1963, §§ 223, 619. Nevertheless, in argument and in its brief, the plaintiff...