DocketNumber: File No. 40420
Citation Numbers: 16 Conn. Super. Ct. 48
Judges: FITZGERALD, J.
Filed Date: 10/13/1948
Status: Precedential
Modified Date: 7/5/2016
The plaintiffs, who are nine in number, are all residents and taxpayers of the defendant city of Derby, residing in the vicinity of New Haven Avenue therein. The defendants, in addition to the city of Derby, are its mayor and collector of taxes.
Of recent date the defendant city caused a sewer extension to be constructed along New Haven Avenue. On August 6, 1948, the municipal board of aldermen voted an assessment for benefits from the construction of this sewer and levied an assessment on properties of the plaintiffs having a frontage on New Haven Avenue. The question here presented is whether a temporary injunction should issue enjoining the collection of the assessment and restraining the defendants from placing liens upon the respective properties of the plaintiffs.
The joint complaint, in brief, specifies that the assessment is contrary to law in that (a) the apportionment of benefits is without reference to other considerations; (b) the assessment was paid for in a previous budget of the city; (c) the assessment is discriminatory; (d) there was absence of a public hearing as required by law; (e) no benefits would attach to some of the properties because the sewer cannot be availed of due to topography of land, etc. *Page 49
There is a serious question in the mind of the court as to whether the plaintiffs should have proceeded under the statute (Sup., 1941, § 165f, entitled "Remedy when property wrongfully assessed") rather than resorted to equity. See discussion in the recent cases of Cohn v. Hartford,
Specifications (a), (c) and (e) of the complaint, enumerated above, are of the "overvaluation" variety. But (b) and (d) are of different hue. It is the latter which take this case out of the more prosaic pattern of cases of this character. The evidence offered by the plaintiffs on October 8 did not center on these latter phases.
The case of Wilcox v. Madison,
The office of a temporary injunction is limited to preserving the status quo between the parties until their rights can be finally determined after a hearing on the merits. See Olcott v. Pendleton,
The court rules that insofar as specifications (a), (c) and (e) are concerned a resort to the statutory remedy would have been required; but that specifications (b) and (d), if supported by at least a prima facie showing of proof, would entitle the plaintiffs to a temporary injunction until a final hearing on the merits. *Page 50
As indicated, the hearing on October 8 did not penetrate sufficiently into these aspects. Counsel may have a further opportunity to be heard at 2 o'clock on Friday afternoon, October 22, before further action will be taken respecting the application on file.
In passing, it may be noted that the more usual statutory appeal sanctioned by § 374c of the 1935 Cumulative Supplement, amendatory of § 1200 of the General Statutes, in no way involved in the light of the complaint and the subordinate allegations thereof. These plaintiffs have one of two recourses, namely, the statute herein considered (Sup., 1941, § 165f) or injunction, with the observation that injunction only lies in the event that a finding can be made that their situation is of an exceptional character warranting relief in equity.
November 4, 1948
The court concludes that equity in the nature of injunctive relief should not intervene; that any rights the plaintiffs may have should be determined in a statutory action, and not otherwise.
Hence the application on file is required to be dismissed.
City of New London v. Perkins , 87 Conn. 229 ( 1913 )
Wilcox v. Town of Madison , 106 Conn. 223 ( 1927 )
Olcott v. Pendleton , 128 Conn. 292 ( 1941 )
General Realty Improvement Co. v. City of New Haven , 133 Conn. 238 ( 1946 )
Deming v. Bradstreet , 85 Conn. 650 ( 1912 )