Peterson v. City of Norwalk

• Decision Date: 16 June 1964
• Citation: 203 A.2d 294,152 Conn. 77
• Court: Connecticut Supreme Court
• Parties: Charles W. PETERSON et al. v. CITY OF NORWALK et al. Charles W. PETERSON v. CITY OF NORWALK et al. Supreme Court of Errors of Connecticut

Page 294

203 A.2d 294

152 Conn. 77

Charles W. PETERSON et al. v. CITY OF NORWALK et al.

Charles W. PETERSON v. CITY OF NORWALK et al.

Supreme Court of Errors of Connecticut.

June 16, 1964.

Sidney Vogel, Norwalk, with whom, on the brief, was Wayne A. Baker, Norwalk, for appellants (plaintiffs in the first case) and for Vogel, Sigsway, Seidman and Harris in both cases.

David S. Maclay, Bridgeport, with whom, on the brief, was Peter Wilkinson, Bridgeport, for appellee (defendant United Aircraft Corporation in the first case); with him also was Samuel Kanell, Asst. Atty. Gen., for the Public Utilities Commission.

Edward J. Zamm, Corporation Counsel, for appellee (defendant city in both cases).

Thomas J. O'Sullivan, New Haven, for appellee (defendant New York, New Haven and Hartford Railroad Co. in the first case).

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

HOUSE, Acting Justice.

The facts in these companion cases have already been reported in detail in prior opinions of this court. In Peterson v. City of Norwalk, 150 Conn. 366, 190 A.2d 33, an action for a declaratory judgment, we held that a contract between the defendant city, the New York, New Haven and Hartford Railroad Company and the United Aircraft Corporation for the construction and maintenance of a bridge over the tracks of the railroad was valid except for the maintenance provision and the provision which required the city to pay more than one-half of the cost of relocating the railroad transmission lines. In Peterson v. City of Norwalk, 150 Conn. 383, 386, 190 A.2d 41, we held that the public utilities commission could have withheld its approval of the bridge construction if part of the cost of relocating the transmission lines was to fall on the railroad, but we suggested (150 Conn. p. 387, 190 A.2d p. 43) that unnecessary and useless proceedings and further needless delay would be avoided if the case were remanded to the Superior Court and 'it is stipulated in that court that the corporation has agreed with the city and the railroad to indemnify the railroad for the additional cost imposed on it by reason of our interpretation of [General Statutes] § 16-98.' The case was thereupon remanded with direction that 'if such a stipulation is filed, the judgment dismissing the appeal shall thereupon be reinstated.' A stipulation signed by counsel for each of the defendants was filed, and the first of the present appeals is taken from the consequent judgment reinstating the judgment dismissing the appeal from the order of the public utilities commission approving construction of the bridge. ¹

The basic claim of the plaintiffs is that the stipulation as filed does not conform to the suggestion of this court. There is no merit to this claim. It conforms in all respects to the suggestion of this court. There was no requirement that the plaintiffs be parties to the stipulation. In fact, in light of their continued opposition to the proposed construction, such a requirement would have been stultifying. There was no error in the judgment approving the stipulation and reinstating the prior judgment of April 26, 1961, dismissing the appeal from the public utilities commission.

The second of the present appeals is taken from a denial by the Superior Court of a petition filed by counsel for the plaintiffs that the court order the defendant city to pay them an allowance as counsel fees. If we assume, without deciding, that the plaintiffs' attorneys have properly taken, in their own name, an appeal in both cases from the...