Second Nat. Bank v. Loftus

• Decision Date: 10 June 1936
• Citation: 185 A. 423,121 Conn. 454
• Court: Connecticut Supreme Court
• Parties: SECOND NAT. BANK OF NEW HAVEN v. LOFTUS.

185 A. 423

121 Conn. 454

SECOND NAT. BANK OF NEW HAVEN v. LOFTUS.

Supreme Court of Errors of Connecticut.

June 10, 1936

Appeal from Court of Common Pleas, New Haven County; Walter M Pickett, Judge.

Action to recover rent by the Second National Bank of New Haven against Harry A. Loftus, which was tried to the court. Judgment for defendant, and plaintiff appeals.

No error.

Amount of fine which Legislature may properly impose depends largely upon object to be accomplished by its imposition, and widest latitude should be given Legislature in determining necessary amount.

Charles M. Lyman, of New Haven, for appellant.

John R. Thim, of New Haven, for appellee.

Argued before MALTBIE, C.J., HINMAN, BANKS, AVERY, and BROWN, JJ.

HINMAN, Judge.

The complaint sought recovery for three months rent under a lease of an apartment in a building in New Haven. The defendant pleaded, as a special defense, that as the building was a tenement house occupied for human habitation " and no building certificate was ever issued in compliance with section 2592 of the General Statutes, therefore the plaintiff, under section 2593, is not entitled to recover." A demurrer to this defense was overruled (Munger, J.) and on the trial the court held the plaintiff to be within the terms of section 2593 and rendered judgment for the defendant. Sections 2592 and 2593 are part of the Tenement House Act (General Statutes, c. 144 [section 2568 et seq.]) which, with chapter 143 (section 2562 et seq.) regulates in many details the location, construction, and equipment of tenement houses defined (section 2562) as meaning any building arranged or designed to be occupied as the home or residence of three or more families. These sections read as follows:

" Sec. 2592. Building inspector's certificate . No building constructed as, or altered into, a tenement house shall be occupied, in whole or in part, for human habitation until the issuance of a certificate by the officer aforesaid that such building conforms in all respects to the requirements of this chapter. Such certificate shall be issued within ten days after written application therefor, if such building, at the date of such application, shall be entitled thereto. Sec. 2593. No recovery of rent, when . If any building constructed as, or altered into, a tenement house be occupied in whole or in part for human habitation in violation of the provisions of section 2592, during such unlawful occupation no rent shall be recoverable by the owner or lessee of such premises for such period and no action or special proceedings shall be maintained therefor."

The trial court found that Irene M. and Archie Young, under a building permit issued by the building department of the city of New Haven on December 6, 1926, erected a building which came within the provisions of chapters 143 and 144 of the General Statutes and was completed in March, 1928. After completion and prior to August 29, 1931, the Youngs conveyed the premises to Lewis Hawthorne, who leased an apartment therein to the defendant for one year from September 1, 1931. The defendant occupied it and paid the monthly rent until June 1, 1932. This action was brought by the plaintiff, to whom Hawthorne had assigned the rents, to recover rent for June, July, and August, 1932. The building conforms to all provisions of the statutes and the building regulations and ordinances of the city of New Haven, but no application or request was, made by the Youngs, or any subsequent owner, for the issuance of a certificate under section 2592 of the General Statutes, and no such certificate has ever been issued with respect to the premises.

During the construction of the building the city building inspector from time to time inspected it as to its conformity to statutes, building ordinances and regulations, indorsed the date of each inspection upon a card filed and retained in his office with similar cards pertaining to tenement houses in the city, and upon final inspection indorsed on the card an " O.K.," signifying that the construction was complete and in conformity to law. The appellant claims that this card constitutes a certificate of conformity sufficient to satisfy the requirements of section 2592 of the General Statutes and assigns error in the finding and conclusion to the contrary. Manifestly the card was an office record of inspections and final conformity upon which a certificate such as that prescribed by the statute would be based. By no stretch of liberality can it be regarded as constituting, also, the certificate itself, or the entries upon it and the filing in the inspector's office " the issuance of a certificate" by that office for which the statute provides. If these conclusions needed confirmation, it would be afforded by the further finding that it was the practice of the inspector's office to furnish, on request, certificates of conformity, made upon a printed form, a sample of which was in evidence, a carbon copy thereof being made and filed in a binder in the office. The binder produced at the trial contained all copies of certificates filed since March 1, 1926, and it is a necessary inference that any interested party could ascertain therefrom whether or not a certificate had been issued as to any particular building. The trial court was correct in holding that the required certificate had not been issued or obtained.

It is too clear for cavil that section 2592 makes unlawful the occupancy of any tenement house within the purview of the act until the issuance of the certificate, and section 2593 as plainly provides that no recovery may be had for rent " during such unlawful occupation." The language of the statute, as well as the purpose manifestly intended to be served by it, plainly precludes the interpretation, contended for by the appellant, that the prescribed disability to recover rent during such unlawful occupation applies only to the owner or other person who actually constructed the house to the exclusion of subsequent owners or lessees controlling occupancy thereof. Section 2593 expressly makes the disqualification applicable during the entire period of unlawful occupation, and by extending it to a...