Valente v. Affinito

• Decision Date: 14 June 1934
• Citation: 173 A. 235,118 Conn. 581
• Court: Connecticut Supreme Court
• Parties: VALENTE v. AFFINITO.

173 A. 235

118 Conn. 581

VALENTE v. AFFINITO.

Supreme Court of Errors of Connecticut.

June 14, 1934

Appeal from Superior Court, New Haven County; John Richards Booth Judge.

Action by Annunziata Valente against John B. Affinito for damages for breach of contract, brought to the superior court at New Haven and tried to a jury. Verdict for the plaintiff, which the court upon motion set aside as not supported by the evidence, and the plaintiff appealed.

No error.

Robert J. Woodruff, of New Haven, for appellant.

William J. McKenna and Frank T. Ryder, both of New Haven, for appellee.

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

HAINES, Judge.

The plaintiff alleged, in substance, that the defendant, on February 26, 1929, agreed to lend her $5,000 at 6 per cent interest to be secured by a mortgage upon her real estate-a lot and a twelve-family apartment house-and agreed that he would assume the care and management of the property, collect the rentals, and pay all taxes, water rates, insurance, city assessments, and the interest on prior mortgages, and apply the balance on the defendant's mortgage above referred to that the mortgage was executed and delivered by the plaintiff, and the defendant thereupon paid her $2,400 of the $5,000 agreed upon, but did not pay her the balance of $2,600; that the defendant assumed the control of the property and collected the rents, but did not pay the charges as agreed; that on May 22, 1929, he began an action of foreclosure against the plaintiff upon the mortgage above described and another mortgage of $5,000 held by him upon this property, made January 31, 1929, in violation of his contract; that the plaintiff has performed all her agreements; that, " as a result of said foreclosures" and " as a result of the defendant's actions," the plaintiff had lost her title to and equity in the property. Defendant entered a general denial, and pleaded that the $2,600 was expended by him upon the property for the benefit of the plaintiff, that at the time this action was begun the property was not producing income, and that the plaintiff had no equity in the property. It was specifically denied that the plaintiff lost the property by reason of the foreclosure action brought by the defendant or because of any other action of the defendant. On this state of the pleadings, the jury gave a verdict for the plaintiff for $10,000 damages, which the court, upon motion, set aside as contrary to the law and the evidence and as excessive.

Though no judgment was ever entered for either party, the plaintiff appealed " from the judgment," and on the same day filed as an assignment of error that the court erred in granting the defendant's motion to set aside the verdict. This appeal is manifestly improper in form, since the obvious attempt was to raise only the question whether the verdict was properly set aside. The appeal should have been in terms from the setting aside of the verdict. General Statutes, § 5693; Marcil v. Merriman & Sons, Inc., 115 Conn. 678, 163 A. 411. However, the record shows that the decision setting aside the verdict was filed November 23d and the reasons of appeal on December 5th, and within the two weeks' period prescribed by our Rules for Appellate Procedure, § § 2 and 3, as amended. We have heretofore ruled that, while an appeal may be one in form from a judgment, yet, if it is limited by the reasons therefor to a review of the decision upon the motion, we may treat it as an appeal from that decision only. Schmidt v. Schaub, 115 Conn. 208, 161 A. 98.

From the record evidence and the exhibits before us, it appears conclusively that the foreclosure action brought by the defendant upon the two mortgages of $5,000 each did not go to judgment, but was later discontinued. It further conclusively appears that Israel Gordon and Isic Kaufman held mortgages on the property totalling more than $16,000, all which had precedence over the defendant's mortgages. Their fifth mortgage, for $7,700, was executed by the plaintiff on August 13, 1928, and on October 19, 1929, an action of foreclosure was brought on this mortgage for default in the payment of both interest and principal. Judgment was for the plaintiffs and law days for the owner of the equity and for this defendant mortgagee were fixed. Sh...