Mayron's Bake Shops, Inc. v. Arrow Stores, Inc.
| Decision Date | 19 December 1961 |
| Citation | 149 Conn. 149,176 A.2d 574 |
| Court | Connecticut Supreme Court |
| Parties | MAYRON'S BAKE SHOPS, INC. v. ARROW STORES, INC. Supreme Court of Errors of Connecticut |
Arnold C. Greenberg, Hartford, with whom were Jacob Bresnerkoff and Jay E. Yaffo, Hartford, for plaintiff in error.
Irving S. Ribicoff, Hartford, with whom was I. Milton Widem, Hartford, for defendant in error.
Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.
This is a writ of error brought to reverse a judgment in favor of the defendant in error rendered by the Town Court of West Hartford in an action of summary process. 1 The instrument involved is entitled a 'Lease and Agreement' and was executed on May 12, 1955, between Saxony Bake Shop-Delicacies, Inc., a Connecticut corporation, and Mayron Keizerstein. The corporation was the lessee of a building in West Hartford in which it conducted a delicatessen and retail bakery business. Under the instrument in issue, it sold its bakery business to Keizerstein and sublet space in a store in the building to him. In December, 1955, it sold its delicatessen business to the defendant in error and assigned its interest in the lease and agreement to the latter. Keizerstein, however, continued his tenancy until May 6, 1959, when he assigned his rights under the lease and agreement to the plaintiff in error, which had been organized about May 1, 1959. The relationship of tenant and landlord has existed between the parties to the present proceeding since May 6, 1959. The plaintiff in error will be referred to as the tenant and the defendant in error will be referred to as the landlord.
The issues are presented on a record notable for its departure from established procedure, due partly to the fact that the judgment was rendered on December 30, 1960, on the eve of the extinction of the Town Court. See General Statutes §§ 51-127 to 51-138, repealed by Public Acts 1959, No. 28 § 204; §§ 51-273, 51-274. Under a writ of error, the correctness of a judgment is to be tested by the facts stated in the bill of exceptions. Cohn v. Fennelly, 138 Conn. 474, 475, 86 A.2d 183; Fleming v. Moran, 136 Conn. 274, 276, 71 A.2d 96; Kovner v. Dubin, 104 Conn. 112, 117, 132 A. 473; Maltbie, Conn.App.Proc. § 241. In the present case, the parties have, following the filing of a bill of exceptions and an amended bill of exceptions, printed a transcript of the evidence as part of the record pursuant to a stipulation and filed appendices to their briefs through which they invite our consideration of the evidence. The transcript and appendices have no proper place in the record under our practice because there is no procedure for correcting a bill of exceptions, as there is in the case of a finding. Maltbie, op. cit., p. 303. The fact that, under the particular circumstances involved, we consider this case as the parties have collaborated in presenting it is not to be construed as sanctioning a departure from established procedure.
From the record before us, it appears that the lease and agreement called for an annual rental of $2500 payable in equal instalments of $208.34, payment to be made on the first day of each month, with a tenday grace period. Under another provision, the tenant agreed to pay, in addition to the rent, a designated percentage of specified utility and other charges within five days after the landlord had paid them and had furnished the tenant with evidence of such payment. Still another clause recited in part that Then follows a description of the arbitration procedure.
On May 1, 1959, the present counsel for the landlord, writing as attorney for Saxony Bake Shop-Delicacies, Inc., sent a letter to Mayron Keizerstein in care of the present counsel for the tenant. The letter, referring to the lease and agreement, stated in part: 'This is to advise you that late payments of rent will no longer be accepted.' Saxony Bake Shop-Delicacies, Inc., had, however, ceased to be the lessor more than three years before. Counsel for the tenant nevertheless, on May 5, 1959, replied to the letter, stating in part that he had shown it to 'my clients' and that 'in the future, monthly rentals as specified in * * * [the] agreement will be made.' The letters of necessity concerned alleged late payments by Keizerstein and not by the present tenant. The circumstances involved appear in the record but are immaterial to the issues before us, because on May 6, 1959, Keizerstein assigned his interest in the lease and agreement to the tenant, of which he is the president. Thereafter, until July 1, 1960, the tenant made its rental payments on or before the tenth of each month with but two exceptions.
On August 12, 1960, Keizerstein, representing the tenant, visited the landlord for the first time that month to pay the August rent. Samuel Cohen, the landlord's president, met him and refused to accept the rent for that month, although he was satisfied that the tenant was able to pay it. Keizerstein thereupon left without paying the rent. On August 15, the landlord issued and served on the tenant a notice to quit the premises on or before August 20, because of nonpayment of the August rent. Thereafter, by process dated September 16, 1960, the landlord brought the action in which the judgment forming the subject matter of this writ of error was rendered. The file discloses that the tenant made answer and special defense to the summary process complaint on October 5, 1960, and on October 6 moved to stay proceedings until arbitration was had. The court denied the motion on October 21, and thereafter the action proceeded to trial and judgment. The record discloses no effort by the tenant to seek arbitration other than the motion alluded to.
The denial of the motion for a stay presents one of the issues raised by the writ of error. During the four weeks which intervened between the service of the notice to quit and the commencement of the summary process action, and during the additional period of three weeks between the start of the action and the filing of an answer, the tenant had only to designate an arbitrator in order to set the arbitration procedure under the agreement in motion. The tenant took no such action during the entire seven weeks. Nor did the tenant, once the summary process action was begun,...
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