Mainolfi v. Zoning Bd. of Appeals of City of Derby
| Decision Date | 21 July 1959 |
| Court | Connecticut Supreme Court |
| Parties | Patrick MAINOLFI et al. v. ZONING BOARD OF APPEALS OF CITY OF DERBY et al. Supreme Court of Errors of Connecticut |
Harold B. Yudkin, Derby, and Barbara A. Coppeto, Waterbury, with whom, on the brief, was George J. Yudkin, Derby, for appellants (plaintiffs).
Edward J. Donahue, Derby, for appellee (defendant Strand Bros. Mfg. Co., Inc.).
Andrew D. Sabetta, Derby, for appellee (defendant board).
Before DALY, C. J., and BALDWIN, KING, MURPHY and MELLITZ, JJ.
The plaintiffs appealed from the action of the zoning board of appeals of Derby in granting the application of the defendant Strand Brothers Manufacturing Company for a variance to permit the reconstruction of certain old factory buildings owned by it and located in the lowest grade residential zone in Derby. The appeal, which was in two counts, contained some repetitious and irrelevant matter which invited a motion to expunge. It should have followed Form No. 481 in the Practice Book, as amended, and its allegations should have been confined to those material to the issues involved, that is, whether and in what respects the board acted illegally in granting the variance, or so arbitrarily and unreasonably as to invalidate its action. Plumb v. Board of Zoning Appeals, 141 Conn. 595, 599, 108 A.2d 899; Spalding v. Board of Zoning Appeals, 144 Conn. 719, 722, 137 A.2d 755.
The defendants simultaneously filed a motion to expunge and a demurrer. Under the provisions of Practice Book, §§ 80 and 81, the filing of the demurrer, in the absence of an order of the court to the contrary, operated as a waiver of any right to a determination of the motion to expunge. Dawson v. Town of Orange, 78 Conn. 96, 119, 61 A. 101. Both the motion to expunge and the demurrer were decided, apparently simultaneously. The determination of the motion to expunge after the filing of the demurrer was erroneous. The rule is not a mere burdensome technicality. The function of a demurrer is to test the sufficiency of a pleading. This cannot be done if, as a result of attacks on it by motion, the pleading is to undergo change after the demurrer has been drafted and filed. The granting of the motion to expunge, although erroneous, was not inoperative. It effectively removed the expunged allegations from both counts of the complaint and until revoked or reversed was the law of the case. Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 565, 29 A. 76, 25 L.R.A. 856.
The sustaining of the demurrer to the second count removed that count from the complaint. Viall v. Lionel Mfg. Co., 90 Conn. 694, 696, 98 A. 329. The sole apparent function of the second count was improperly to attack the validity of the board's action in denying the applications of three of the plaintiffs for a variance to cover the operation of a junk yard, of revolting appearance, situated close by the Strand factory in the same residence zone, or at least to assert that there was an inconsistency between that denial and the granting of the Strand application. A reading of the complaint as a whole shows that the appeal is only from the granting of the Strand application and not from the denial of the others. The proceedings concerning the junk yard were wholly unrelated and irrelevant to the question involved in the appeal taken. Chouinard v. Zoning Commission, 139 Conn. 728, 732, 97 A.2d 562; Barnini v. Liquor Control Commission, 146 Conn. 416, 419, 151 A.2d 697. There was therefore no error in sustaining the demurrer to the second count.
Some of the allegations expunged from the first count should not have been included in the complaint, and their removal improved it. As to these allegations, the granting of the motion to expunge, even though erroneous, was not harmful. Clear, concise pleading, although highly desirable, is not, however, in all cases required, and allegations should not be expunged from a pleading unless it is clear that there was no reasonable ground for inserting them in it. Burritt v. Lunny, 90 Conn. 491, 495, 97...
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...unreasonably as to invalidate its action. Woodford v. Zoning Commission, supra, 147 Conn. 32, 156 A.2d 470; Mainolfi v. Zoning Board of Appeals, 146 Conn. 634, 635, 153 A.2d 460. The plaintiffs' further contention that the board's action is invalid for its failure to adopt or reject the cha......
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