SanMarco v. City of New Haven

123 A. 439, 100 Conn. 289, 1924 Conn. LEXIS 12

• Court: Supreme Court of Connecticut
• Decided: January 29, 1924
• Status: Published

Opinion

Per Curiam.

The appeal is based upon the sustaining of the demurrer. There were four grounds of demurrer. Since the second is well taken and conclusive of the cause set up in the complaint, and the complaint is not now amendable because the plaintiff refused to plead over after the sustaining of the demurrer, we purpose confining our review of the ruling to this single ground. Lewisohn v. Stoddard, 78 Conn. 575, 605, 63 Atl. 621.

The second ground of demurrer is that there is no allegation in the complaint that the defendant city had actual notice of the defect, or that the defect had existed for such a length of time as to charge the city with constructive notice of it. The plaintiff does not contend that the complaint charges actual notice to the city. She does contend that its allegation that the city ought to have had notice of the defect is an adequate allegation of constructive notice. Alleging that the city ought to have had notice does not allege a fact, and is not the equivalent of an allegation that the defect had existed for such time as to charge the city with constructive notice of its existence. Our law is definite upon this point, and has been so frequently stated in the opinions of the court that we refrain from restating it and merely cite some of the cases which fully sustain ground two of the demurrer. Smith v. Milford, 89 Conn. 24, 33, 92 Atl. 675; Crotty v. Danbury, 79 Conn. 379, 385, 65 Atl. 147; Dean v. Sharon, 72 Conn. 667, 672, 45 Atl. 963; Davis v. Guilford, 55 Conn. 351, 357, 11 Atl. 350; Boucher v. New Haven, 40 Conn. 456, 460; Manchester v. Hartford, 30 Conn. 118, 121.

There is no error.