Stradmore Development Corp. v. Commissioners, Bd. of Public Works of City of New Britain

• Decision Date: 03 April 1973
• Court: Connecticut Supreme Court
• Parties: STRADMORE DEVELOPMENT CORPORATION et al. v. COMMISSIONERS, BOARD OF PUBLIC WORKS OF the CITY OF NEW BRITAIN, et al.

Page 919

324 A.2d 919

164 Conn. 548

STRADMORE DEVELOPMENT CORPORATION et al. v. COMMISSIONERS, BOARD OF PUBLIC WORKS OF the CITY OF NEW BRITAIN, et al.

Supreme Court of Connecticut.

April 3, 1973.

William A. McQueeney, Asst. Atty. Gen., for the appellant (intervening defendant Robert K. Killian, Atty. Gen.).

Robert P. Burns, New Haven, for the appellees (plaintiffs).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

BOGDANSKI, Associate Justice.

In this action for mandamus seeking a permit for the construction of a sanitary sewer through the A. W. Stanley Park located in New Britain, Connecticut, the attorney general intervened as a party defendant alleging that he is entrusted by law with protecting the interest of the public, that A. W. Stanley Park cannot be used for any purpose other than a public park and that the construction of a sewer would be an illegal use of park property. By way of counterclaim, he sought to enjoin the issuance of such a permit by the codefendant board of public works and to enjoin the plaintiffs from entering upon and installing any sewer pipes in the park. To the relief sought under the counterclaim, the defendant commissioners, hereinafter called the board of public works, filed a demurrer, which was sustained. From a judgment thereupon rendered, the attorney general appealed to this court.

The demurrer filed by the defendant board of public works alleged that 'on the facts stated therein the said defendant is not entitled to such relief for the reason that, as a matter of law, a sanitary sewer may be built in the A. W. Stanley Park and would not be contrary to law, and would not involve the private use of public property, nor would it divert the park property to any other use.' It is to be noted that this demurrer was filed by the codefendant board of public works and not by the plaintiffs.

The attorney general's second assignment of error presents the sole issue in this case and that is whether the court erred in sustaining the demurrer.

The record reveals the following: This action for mandamus was brought by Francis H. Dobrowolski, individually and as president of the plaintiff corporation, seeking to compel the defendant board of public works to permit the plaintiffs to install a sanitary sewer line through the A. W. Stanley Park. The attorney general moved to intervene as a party defendant and the motion was granted. He then filed a general denial, a special defense and a counterclaim. The defendant board of public works then demurred to the relief sought in the counterclaim directed against it and this demurrer was sustained. At trial the attorney general attempted to defend the action based on his general denial, but was not permitted to do so and the court granted the plaintiffs' motion of misjoinder. The attorney general then moved for judgment on the demurrer. This was granted. The trial then continued and judgment issuing a writ of mandamus was rendered thereafter for the plaintiffs.

The issue raised by the court's action in sustaining the demurrer, and pressed on this appeal, is whether the court erred in ruling, as a matter of law, that the attorney general was not entitled to the relief sought in his counterclaim.

The demurrer admits all well-pleaded facts. Weaver v. Ives,152 Conn. 586, 589, 210 A.2d 661. The allegations are entitled to the same favorable construction as a trier would be required to give in admitting evidence under them; Benson v. Housing Authority, 145 Conn. 196, 199, 140 A.2d 320; and if facts provable under the allegations would support a defense or a cause of action, the demurrer must fail. Cyr v. Brookfield,153 Conn. 261, 263, 216 A.2d 198. The court will not, in passing on a demurrer, consider other grounds than those spedified. Turrill v. Erskine,134 Conn. 16, 19, 54 A.2d 494. Furthermore, on demurrer the court considers the whole record. White v. Avery, 81 Conn. 325, 328, 70 A. 1065.

To begin...