Rosa v. Cristina

• Decision Date: 21 February 1949
• Citation: 135 Conn. 364,64 A.2d 680
• Court: Connecticut Supreme Court
• Parties: ROSA v. CRISTINA et al.

135 Conn. 364

64 A.2d 680

ROSA

v.CRISTINA et al.

Supreme Court of Errors of Connecticut.

Feb. 21, 1949.

Error from City Court of Waterbury; Meyers, Judge.

Action of summary process by Albert Cirstina and others against Angelo Rosa. To review judgment for plaintiffs after demurrer to complaint was overruled, the defendant brings error.

Error and new trial ordered.

Harry M. Albert and Michael V. Blansfield, both of Waterbury (John F. Tobin, of Waterbury, on the brief), for plaintiff in error.

William K. Lawlor, of Waterbury, for defendants in error.

Before MALTBIE, C. J., and BROWN, JENNINGS, DICKENSON, and ELLS, JJ.

ELLS, Judge.

The lessors of premises located in Waterbury brought an action of summary process against the lessee. The City Court of Waterbury entered judgment for the lessors, and this writ of error was taken by the lessee.

The basic claim of the lessee is that the complaint failed to allege a cause of action of summary process. General Statutes, Cum.Sup.1939, § 1429e, Rev.1949, § 8274, provides that it lies only where a lease ‘shall terminate by lapse of time, or by reason of any expressed stipulation therein,’ or under the statute as to nonpayment of rent, § 897h of the 1945 Cumulative Supplement, Rev.1949, § 7107. Section 5978 of the 1930 revision, Rev.1949, § 8281, provides that the action may be brought when the tenant ‘shall be convicted’ of keeping a house of ill fame upon the premises or of a violation thereon of any law against gaming. Under § 1429e it is essential that the lease should have terminated in one of the ways specified; Lang v. Young, 34 Conn. 526, 528; Goldberg v. Callender Bros., Inc., 95 Conn. 69, 72, 110 A. 457; and the action is limited to cases where ‘the issue of the expiration of the lease presents itself as a simple issue of fact, not complicated by questions as to the proper legal construction of lease.’ Davidson v. Poli, 102 Conn. 692, 695, 129 A. 716, 717.

The lessors did not allege, nor have they claimed, that their action was based on nonpayment of rent or the expiration of the term of the lease, which the complaint stated was for five years from April 1, 1946. The apparent basis of the case was a written lease, and the question before the lower court seems to have been whether it had terminated by an illegal use of the premises by the lessee. The record before us does not contain a bill of exceptions and therefore we do not know what facts were found by the trial court. A bill of exceptions in a writ of error takes the place of a finding in an appeal and in the absence of one we are limited in our consideration of the case to matters forming a part of the record of the trial court. See Putterman v. Miller, 133 Conn. 70, 72, 48 A.2d 235. There is no judgment file in the record. Only the pleadings and perhaps the lease which is printed in the record are properly before us in the present case.

It was alleged in the complaint that the lessee was selling whiskey on the premises without first obtaining a license from the liquor control commission to sell intoxicating liquor, that he carried on a gambling game on the property and that he has been creating a nuisance thereon by burying broken glass, carrying on a boisterous game in the yard at night, burying rubbish so as to create a fire hazard, failing to remove rubbish according to the terms of the lease, and damaging the sidewalk so as to render it dangerous. These allegations were denied. Judgment was for the lessors and therefore the...