Segall v. Gagliardi
| Decision Date | 10 November 1925 |
| Citation | 103 Conn. 497,130 A. 896 |
| Court | Connecticut Supreme Court |
| Parties | SEGALL v. GAGLIARDI. |
Error from City Court of New Britain; Benjamin W. Alling, Judge.
Action of summary process by David S. Segall against Angelo Gagliardi. Judgment for defendant, and plaintiff brings error. No error.
Donald Gaffney, Cyril Gaffney, and Bernard F. Gaffney, all of New Britain, for plaintiff in error.
Edward A. Mag, of New York City, for defendant in error.
On the 9th day of November, 1922, Segall and Gagliardi executed a written lease of a portion of the store at No. 319 Main street, New Britain, Conn., the store being a portion of the premises owned by Segall, for the term of five years from December 1, 1922. The lease contained the following provisions:
with the usual provision for re-entry, etc. " And it is further agreed between the parties hereto that the lessee to comply with, and conform to, all the laws of the state of Connecticut."
On December 1, 1922, Gagliardi entered into possession of these premises under the lease, and has continued in such possession up to the present time. He made all payments required under his lease at the times specified therein, up to the time of the bringing of this action.
On October 22, 1923, Gagliardi was convicted in the police court of New Britain of a violation of chapter 291 of the Public Acts of 1921, " in that he did keep a place known and described as a certain shoe shine shop situated at No. 315 Main street (the leased premises) in which there then was long before had been, and still is reputed that spirituous and intoxicating liquors were and are kept for sale, and that he did own and keep with intent to sell certain spirituous and intoxicating liquors."
On December 2, 1924, Gagliardi was for a second time convicted of the same offense at the same place. Segall received actual notice of Gagliardi's conviction at the time thereof, yet accepted the monthly rental without protest from November 1 1923, to and including April, 1925. These acts for which Gagliardi was convicted constituted the only basis for this action of summary process brought May 2, 1925. The parties went to trial and the above state of facts was proved. As these facts were all the facts material to the case claimed in the original and amended complaint, Segall cannot now complain of the rulings on demurrer.
Upon the trial, Segall, as stated in his bill of exceptions claimed:
" That the foregoing constituted a continuing breach of two provisions of the lease: One, that said lease should not be used for any purpose but that therein authorized, the other, that the lessee had failed to conform to all the laws of the state of Connecticut in that he was conducting a nuisance upon said premises."
These claims are elaborated in the appeal, but they contain all the essential elements of Segall's claim. The basic vice of these claims lies in their assumption that the breaches were continuing. The bill of exceptions states:
" That no evidence was offered to show that the reputation which said premises had on October 22, 1923, and December 2, 1924, continued beyond December 2, 1924, or that liquor was kept for sale upon said premises subsequent to December 2, 1924; that there was no evidence that any breach of said lease or any of the covenants thereof occurred subsequent to December 2, 1924; that there was no evidence of any violation by the defendant of chapter 291 of the Public Acts of 1921 from the date of the first conviction, October 23, 1923, until shortly before December 2, 1924."
From these facts the plaintiff in error would have us hold, as matter of law, that the condition existing on December 2, 1924, continued to the date of suit, and cites to this point United States v. Stevens, 103 Conn. 7, 130 A. 249.
This was a case brought under the so-called " padlock secti...
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Matter of Curio Shoppes, Inc., Bankruptcy No. 2-85-00171.
...(1977); it does, however, constitute a waiver of any prior breach, whether due to non-payment of rent or otherwise. Segall v. Gagliardi, 103 Conn. 497, 502, 130 A. 896 (1925) ("While all of our decided cases have arisen over the breach of the covenant to pay rent, the rule of waiver applies......
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Adam v. Consolini
...Illuminating Co., 184 Mass. 523, 527, 69 N.E. 364; 2 Underhill, Landlord & Tenant, p. 1379; 32 Am.Jur. 823, § 980; see Segall v. Gagliardi, 103 Conn. 497, 502, 130 A. 896. The trial court could reasonably reach the conclusion that the requirement had been waived. The defendants in their arg......
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Judd v. Mutual Bank & Trust Co.
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