Goldberg v. Callender Bros., Inc. , 95 Conn. 69 ( 1920 )

The plaintiffs, in the summary process action brought to the City Court of Hartford against their lessees under a written lease to recover possession of the leased premises, having failed in that proceeding and desiring a review by this court of the City Court's action in erasing it from the docket, took an appeal to this court, being the first of the two above entitled cases. This course, as applicable to a summary process action, was mistaken and unauthorized. General Statutes, § 6122. Correction of errors committed by a trial court in such proceedings can be obtained by writs of error only. Marsh v. Burhans, 79 Conn. 306,310, 64 A. 739; Brodner v. Swirsky, 86 Conn. 32, 36,84 A. 104. The defendant's motion to erase this appeal from our docket is, therefore, granted. Marsh v.Burhans, 79 Conn. 306, 64 A. 739.

Counsel for the plaintiffs having discovered his mistake in taking an appeal, later brought a writ of error, which is the second of the two cases appearing upon our docket. This writ brings before us for review the alleged errors involved in the City Court's dismissal of the summary process action, and calls for such review.

No question was made before us, or as far as appears, in the court below, as to the manner of its disposition of the case upon a motion to erase and dismiss. The only matter discussed concerned the plaintiffs' right to have relief by summary process upon the allegations of their complaint. To that subject we shall, therefore, confine our attention.

Summary process is a special summary proceeding of limited application. It is provided for by statute, and its use and limitations are therein carefully prescribed. Where, as here, a tenant is in possession under a written lease, his landlord can maintain summary process against him only when the lease has terminated either by lapse of time, or by reason of an express stipulation therein. General Statutes, § 6119. In the present case the term of the lease has not expired. On the contrary, it has some four years to run. If the plaintiffs in error were entitled to institute summary process proceedings when they undertook to do so, it must, therefore, be for the reason that the lease had terminated by reason of some express stipulation contained in it. The only stipulation relied upon as leading to that result, is one in the form of a covenant that the leased premises should be used only as a saloon and liquor establishment. It is contended that this provision, taken in connection with another, to the effect that if default should be made in any of the lease's covenants to be kept and performed by the lessee it should be lawful for the lessors thereafter and without previous demand or notice to re-enter and take possession of the premises, and that such re-entry and taking possession should forthwith end and terminate the lease, and with the alleged facts that the sale of intoxicating liquors had been forbidden by law, that the lessee had sublet the premises for a purpose other than that designated in the lease, and that the lessors had re-entered and taken possession, — establishes that the lease had, when the summary process action was begun, become terminated by force of that document's express stipulations. Conceding the fundamental basis of this contention, whether sound or unsound, it is only necessary to observe that there is an entire failure to allege that the premises had been used for any purpose other than as a saloon and liquor establishment. The complaint goes no further than to allege facts from which the natural inference is that the premises had ceased to be used for the purpose indicated, and that they had been sublet for other use. There is no covenant in the lease forbidding either the one or the other of these things. In fact the lease authorizes subletting. Until there has been actual use of the premises for some proscribed purpose, there can be no breach of the covenant or condition of the lease relied upon, however its terms are to be interpreted. The alleged fact that the sale of intoxicating liquors had been forbidden by law and Constitution, and that, therefore, the conduct of a saloon had thereby become unlawful, is one that possessed no practical significance as far as the disposition of the case was concerned, for the double reason that it did no more than forbid the use of the premises for the purposes anticipated in the lease, and that if, as claimed, it put an end to the lease, that result was produced by operation of law and not by express stipulation of the lease.

Other questions suggested by the record and discussed by counsel do not call for consideration.

The appeal is erased from the docket and no error is found upon the writ of error.

In this opinion the other judges concurred.