Vogel v. Bacus

• Citation: 48 A.2d 237,133 Conn. 95
• Court: Supreme Court of Connecticut
• Decision Date: 20 June 1946
• Parties: VOGEL v. BACUS et al.

133 Conn. 95

48 A.2d 237

VOGEL

v.BACUS et al.

Supreme Court of Errors of Connecticut.

June 20, 1946.

Error to City Court of Hartford; Gross, Judge.

Action of summary process for possession of realty by Nathan Vogel against Spiros Bacus and others. To review an adverse judgment, defendant brings error.

Error, judgment set aside, and case remanded.

JENNINGS, J., dissenting.

Francis P. Rohrmayer, of Hartford, for plaintiff in error.

Joseph P. Cooney and Charles R. Zartarian, both of Hartford, for defendants in error.

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

DICKENSON, Judge.

The defendants in error, referred to herein as the landlords, served a notice to quit possession of a store which they owned upon the plaintiff in error, their tenant, who is so designated herein, and brought summary process on his failure to yield possession. The tenancy was under a lease in which the premises were described as No. 487 Main Street, Hartford. The notice to quit is neither recited in nor made a part of the pleadings in the trial court; it does not appear to be a part of the trial court's record, upon which the writ of error must be based; and, though it is printed in the record before us, it cannot be considered. Putterman v. Miller, 133 Conn. 70, 48 A.2d 235. We are confined to the statement as to it in the pleadings in the trial court and in the bill of exceptions attached to the writ. From these it appears that in the notice and the original summary process complaint the premises were described as No. 493 Main Street. The landlords amended their complaint on the return day by alleging that the premises described in the lease as 487 Main Street were also known as 489 Main Street and 493 Main Street. The tenant demurred to the complaint as amended on the ground that it appeared that the premises for which possession was sought were not the same as those mentioned in the lease and complaint. The demurrer was overruled and the tenant answered over, denying that 487 and 489 Main Street were also known as 493 Main Street. It appears by the bill of exceptions that 493 Main Street was not the store leased to the tenant but one leased to a different person. The trial court held that the variance in numbers was immaterial and entered judgment for the landlords. The tenant assigns error in the overruling of the demurrer and in the ruling that the difference in street numbers was immaterial. The demurrer was upon the ground that the premises of which possession was sought were not those mentioned in the lease and complaint. The complaint alleged that they were the same and the demurrer perforce admitted it. Hardy v. Scott, 127 Conn. 722, 723, 19 A.2d 420. The trial court was not in error in overruling the demurrer.

The remaining claim of the tenant is that the amended complaint will not support the judgment because the premises referred to in the complaint were not the premises described in the notice to quit possession. General Statutes, Cum.Sup.1939, § 1429e, requires the lessor to give notice to the lessee to quit possession of the ‘land, building or apartment’ of which he desires possession in substantial compliance with a prescribed form, which includes the quoted words. In Colt v. Eves, 12 Conn. 243, 260, we indicated that in view of the summary nature of the process the statute must be strictly followed, and the judgment to be rendered is for the possession of the property ‘of which he [the lessor] claims he is excluded.’ ‘Under our law this statutory remedy is to be construed strictly.’ Lorch v. Page, 97 Conn. 66, 69, 115 A. 681, 682, 24 A.L.R. 1204; Molzon v. Carroll, 91 Conn....