165 Conn. 608 | Conn. | 1973
The plaintiff, Avis Rent-A-Car System, Inc., brought this action in the Court of Common Pleas to enjoin the defendant, Crown High Corporation, from continuing to operate as an Avis licensee in New London, Groton, Clinton and Madison, Connecticut. Both parties moved for summary judgment. After argument on those motions and while they were under consideration by the court, the defendant filed an answer and counterclaim and moved for a default for failure to plead and for a transfer to the Superior Court. The motions were denied by the court. From the action of the court in granting the motion for summary judgment for the plaintiff and the judgment rendered thereon, the defendant has appealed to this court.
The defendant first became an Avis licensee on January 1,1961. On November 1,1962, and on April 1, 1964, the plaintiff granted licenses to the defendant to operate an automobile and truck rental business in the towns of New London, Groton, Clinton and Madison. The license agreements provided that they were to be construed in accordance with the law of New York and contained the following termination clause: “Either party hereto shall have the right to terminate this Agreement at any time after one year from the date hereof with or without cause, except that after ... 5 years from the date Licensee first became an Avis System licensee, . . .
On September 30, 1965, Avis mailed notices of termination of the 1962 and 1961 licenses to the defendant, to be effective midnight, December 31,1965. The notices stated no cause for the termination except that “circumstances compel this.”
Since the defendant continued to operate as .an Avis licensee despite the notices of termination, the plaintiff commenced this action for an injunction on November 30, 1967. A substituted complaint was filed on October 15, 1968. On November 7, 1968, before any answer had been filed, the defendant moved for summary judgment, asserting “that there is no genuine issue .as to any material fact,” challenging the timeliness of the notices of termination. On December 10,1968, the plaintiff also moved for summary judgment.
Both motions were argued on December 13, 1968, before Cohen, J., who reserved decision and took possession of the file. Summary judgment for the plaintiff was granted by Judge Cohen on March 28, 1969. Earlier, on December 17,1968, while the court
The defendant presses three claims:
The licenses required that notice be given “at least 90 days prior to the January 1, or April 1 or July 1 or October 1 preceding or coinciding with” the date of termination. The notices of termination actually sent were made effective as of midnight, December 31, 1965. The defendant contends that this termination date did not coincide with January 1,1966, and that the notices therefore should have been sent at least ninety days prior to October 1, 1965, the preceding quarterly date. The plaintiff argues that under New York law “midnight, December 31,1965” does coincide with January 1, 1966, and that the notices, therefore, were timely.
The New York courts have not yet decided whether midnight is part of the following day. By statute,
The defendant relies on Crowther v. Avis Rent-A-Car System, Inc., 284 F. Sup. 668 (W.D. Wash.), which involved an Avis notice of a license termination “effective as of midnight, March 31, 1968,” and a termination clause analogous to the one now before us. The court said (p. 670) that, assuming “that a given midnight can be considered a point in two different days [referring to Chester v. Department of Civil Service, 90 N.J. Super. 176, 216 A.2d 611,] . . . Avis nevertheless elected by the wording of its notice of termination to treat midnight as a point in March 31,1968, rather than as a point in April 1, 1968, and will not now be heard to urge a contrary construction.” The court relied on the familiar principle of construction that doubts arising from ambiguity of language are resolved against the writer, in this case Avis.
We cannot agree with this reasoning. Midnight is a point in time and not a period of time. The defendant was not required by the notices it received
The defendant further asserts that because it had been an Avis system licensee since January 1,1961, Avis cannot terminate its licenses without cause on January 1,1966, because the termination clause provides that “after 5 years from the date Licensee first became an Avis System licensee, . . . Licensor may terminate . . . only with cause.” Section 20 of the New York General Construction Law provides that “[t]he day from which any specified period of time is reckoned shall be excluded in making the reckoning.” This means that Avis had until January 2, 1966, to terminate without cause. See, e.g., Union Mutual Life Ins. Co. v. Kevie, 17 App. Div. 2d 109, 232 N.Y.S.2d 678, aff’d, 13 N.Y.2d 971, 194 N.E.2d 686, in which an insurance policy issued on August 16,1957, containing a provision that it would become incontestable after two years, was held contestable on August 16,1959.
We conclude that under New York law “midnight, December 31,1965,” coincided with January 1,1966, and that the notices were timely.
The defendant next claims that the judgment cannot stand because the defendant’s answer, filed after the hearing on the motions for summary judgment,
Furthermore, the trial court’s failure to follow the provisions of Practice Book § 306 (subsequently repealed) cannot now be taken advantage of by the defendant to invalidate the summary judgment proceeding. The purpose of § 306 was to assure the parties a full hearing on the questions of law raised. Perri v. Cioffi, 141 Conn. 675, 680, 109 A.2d 355. In this case a full hearing was had without objection or a request for postponement by the defendant.
The defendant’s final claim is that the court erred in denying its motion for default and its motion to transfer. A counterclaim is properly filed in the answer. Practice Book § 124. A counterclaim which
There is no error.
In this opinion the other judges concurred.
The defendant’s other assignments of error have not been briefed and are treated as abandoned. State v. Grayton, 163 Conn. 104, 109, 302 A.2d 246; Maltbie, Conn. App. Proc. § 327.
Section 298 has since been amended, and now provides that a motion for summary judgment must await the closing of the pleadings.