Perrys, Inc. v. Waterbury Redevelopment Agency

• Decision Date: 29 October 1968
• Parties: PERRYS, INC. v. WATERBURY REDEVELOPMENT AGENCY et al.
• Court: Connecticut Supreme Court

Page 256

249 A.2d 256

157 Conn. 122

PERRYS, INC. v. WATERBURY REDEVELOPMENT AGENCY et al.

Supreme Court of Connecticut.

Oct. 29, 1968.

William J. Larkin, 2d, Waterbury, for appellant (plaintiff).

Alfred L. Finkelstein, Waterbury, with whom, on the brief, was Francis M. McDonald, Waterbury, for appellee (named defendant).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

HOUSE, Associate Justice.

This appeal is from a judgment of the Superior Court, and the sole error assigned is the granting of the motion by the named defendant to erase the case from the docket. Our rules of practice clearly distinguish between pleas in abatement and motions to erase. ¹ 'A motion to erase the case from the docket will be granted only when it clearly appears on the face of the record that the court is without jurisdiction. Pearson v. Bridgeport Hydraulic Co., 141 Conn. 646, 648, 109 A.2d 260; Reilly v. Antonio Pepe Co., 108 Conn. 436, 443, 143 A. 568. A motion to erase admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. Fairfield Lumber & Supply Co. v. Herman, 139 Conn. 141, 144, 90 A.2d 884.' Brown v. Cato, 147 Conn. 418, 419, 162 A.2d 175, 176. Every presumption which favors the jurisdiction of the court should be indulged; Fairfield Lumber & Supply Co. v. Herman, supra; and, if facts which do not appear in the record are relied upon, the attack must be by plea in abatement. Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711; see also Park Construction Co. v. Knapp, 150 Conn. 588, 591, 192 A.2d 635; Smith v. Smith, 150 Conn. 15, 23, 183 A.2d 848; Village Creek Homeowners Assn., Inc. v. Public Utilities Commission, 148 Conn. 336, 340, 170 A.2d 732; Felletter v. Thompson, 133 Conn. 277, 280, 50 A.2d 81.

The defendant's motion was directed to the complaint as a whole, without attacking the individual counts. The only facts appearing of record in the present case, prior to the filing of the motion to erase, are those appearing in the plaintiff's writ, summons and complaint, including six exhibits incorporated therein by reference, and an answer to the complaint filed by Sherman H. Perry, the individual defendant. In the first count, it is alleged that Perry has been the owner of premises in Waterbury on which the plaintiff, as his lessee, has been conducting a laundry and dry cleaning business; that the defendant redevelopment agency has condemned the premises; that the plaintiff and Perry have appealed to the Superior Court for a review of the compensation offered by the agency; and that the agency has failed and refused to compensate the plaintiff for damage and loss to its personal property, to improvements made to the leasehold owned by the plaintiff, for loss of good will, and for damages caused by the termination of its lease.

The second count repeats the allegations of the first count, except for those alleging the failure and refusal of the defendant agency to compensate the plaintiff, and then alleges that Perry has breached his lease to the plaintiff and thereby caused it damage.

In its motion to erase the case from the docket, the defendant agency alleges that it acquired the property by eminent domain pursuant to §§ 8-124 through 8-133 of the General Statutes, that those statutes provide the exclusive remedy for the determination and recovery of any damages sustained by the plaintiff as lessee, and that the plaintiff cannot maintain the present action for the determination and recovery of any such damages. Had the agency proceeded by plea in abatement...