Scinto v. Derman , 33 Conn. Super. Ct. 754 ( 1976 )

I agree with the conclusion that the judgment must be vacated because the plaintiff has failed to file any evidence in support of the finding as required by Practice Book 567H. I would, however, order a new trial rather than direct judgment for the defendant. A new trial has been ordered in the analogous situation where there has been disregard of the requirement that where there is a claim on appeal that the evidence was insufficient to support the verdict the appellee must print or recite in an appendix to his brief the evidence which supports the verdict. Smith v. Housing Authority, 144 Conn. 13. Cf. Gerr v. Yale University, 157 Conn. 589. Although this case also presents a situation where the trial court rendered judgment upon a ground which had not been pleaded, a new trial has been ordered in a very similar case of fatal variance. Frosch v. Sears, Roebuck Co., 124 Conn. 300, 304. It is only where the facts are clear on the record that judgment may be directed. Coughlin v. McElroy, 72 Conn. 444, 447.