Pentino v. Pappas

• Decision Date: 04 May 1921
• Citation: 113 A. 451,96 Conn. 230
• Court: Connecticut Supreme Court
• Parties: PENTINO v. PAPPAS et al.

113 A. 451

96 Conn. 230

PENTINO v. PAPPAS et al.

Supreme Court of Errors of Connecticut.

May 4, 1921

Appeal from District Court of Waterbury; Frederick M. Peasley Judge.

Action by Michael Pentino against Dushi Pappas and others to recover a commission for procuring a purchaser for defendants' business, brought in the city court, and appealed by defendants to the district court of Waterbury. Judgment of nonsuit rendered in favor of defendants, and motion to set it aside denied, and defendants appeal. Error, and new trial ordered.

Frank P. McEvoy, of Waterbury, for appellants.

Patrick Healey, of Waterbury, for appellee.

PER CURIAM.

In Cook v. Morris, 66 Conn. 210, 33 A. 998, Justice Hamersley pointed out that " involuntary nonsuit was unknown to the common-law practice of this state," and that the power of granting such nonsuits was first given by statute in 1852.

Our present statute (General Statutes, Rev. 1918, § 5793) is substantially in the form of the original statute of 1852. It authorizes the court to grant a nonsuit in every civil action " if in its opinion the plaintiff shall have failed to make out a prima facie case." The power to grant a nonsuit and the rules governing the court in granting it are the same whether the action be tried to the court or to the jury. Booth v. Hart, 43 Conn. 484; Foskett &amp Bishop v. Swayne et al., 70 Conn. 74, 38 A. 893; Town of Canton v. Burlington, 58 Conn. 277, 279, 20 A. 602.

The test by which the grant or denial of the nonsuit is determined is the answer in the affirmative of the question:

" Is the plaintiffs' evidence sufficient, in point of law, to make out a prima facie case in their favor?" Thames Steamboat Co. v. Housatonic Railroad Co., 24 Conn. 40, 49, 63 Am.Dec. 154.

The trial court granted the nonsuit upon the ground that the court did not credit the testimony of the proposed purchaser whom the plaintiff had procured and who was a principal witness for the plaintiff. In Cook v. Morris supra, we said:

" Where the granting [of a nonsuit] must depend in any appreciable degree upon the court's passing upon the credibility of witnesses, the nonsuit should not be granted."

We reaffirmed this rule in the late case of Fields v Fields, 93 Conn. 96, 98, 105 A. 347. And in Cohen v. Schneider, 70 Conn. 505, 509, 40 A. 455, 457, we said:

" Though the court may have had sufficient reason to be satisfied that the testimony of the plaintiff and Tovorovsky was false or wholly unreliable, and that they were engaged in a scheme to defraud the creditors of Tovorovsky and to prevent the defendant *** from collecting his just claim, the case should

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