329 A.2d 613 | Conn. Super. Ct. | 1974
The plaintiff seeks to recover the disputed portion of its claim for moving expenses incurred as a result of the taking of property at 55 North Street, Hartford, occupied by the plaintiff, in an eminent domain proceeding instituted by the defendant on January 13, 1962. The total amount of the claim presented for moving expenses was $138,994.51, of which $111,441.61 was paid, leaving a balance of $27,552.90 in dispute. Interest is also claimed upon the disputed amount as well as upon amounts which were paid from the time when the claim was first presented. All of the expenses claimed were incurred during the period July 1, 1961, to February 1, 1962.
The defendant has raised the question of jurisdiction over the subject matter of this suit upon two grounds: (1) that judicial review of relocation *280
awards is precluded by an amendment to the Housing Act of 1949;
In Merge v. Troussi,
In an earlier decision involving the same litigation, it had been held that there was federal jurisdiction of a declaratory judgment suit involving a claim for removal expenses brought against the administrator of the federal agency as well as the local authority. Merge v. Sharott,
It does not appear that there is any Connecticut counterpart to the Pennsylvania statute discussed in Merge v. Sharott, supra. See General Statutes, c. 130. Nevertheless, in a number of decisions it has been held that a third person may enforce a contract between other parties if it was intended to confer such a right upon him, "or the promisor intended by such agreement to assume a legal obligation to the third person." Byram Lumber Supply Co.
v. Page,
In a case decided prior to Merge v. Troussi, supra, it was declared that a plaintiff seeking an additional allowance for relocating its business as a result of an urban renewal project in Stamford, Connecticut, *283
would have "no standing to sue as a third party beneficiary on the contract between the federal agencies and the local commission." United Publishing Printing Corporation v. Horan,
It does not appear from the documents produced in evidence at the trial of this case that any express obligation was ever assumed by the Hartford redevelopment agency to make any payment of relocation expenses. In this respect the redevelopment plan provides that the "Relocation Office" of the agency will assist in a general way the relocation of businesses; a relocation payment schedule for individuals and families is approved; and the executive director is designated to approve all claims for relocation payments.
This suit is not on any express promise made by the defendant to the plaintiff, such as the real estate purchase contract held to be enforceable against the agency as a signatory in a case relied upon by the plaintiff, Entin v. Bristol,
If we assume arguendo that the dictum in Merge
v. Troussi,
So far as jurisdiction in this court over a suit seeking judicial review of a decision of a local administrative board is concerned, it is well settled that appeals to the courts from such an agency may *285
be taken only under statutory authority, and, absent such authority, there is no jurisdiction to entertain such an appeal. Miller v. Board of Education,
The plaintiff contends that it is entitled to pursue its case on the theory that the law and regulations in existence at the time it incurred the expenses claimed became frozen into the contract, between the local and the federal agency, of which the plaintiff is a beneficiary. "It is true that statutes existing at the time a contract is made become a part of it and must be read into it just as if an express provision to that effect were inserted therein, except where the contract discloses a contrary intention."Ciarleglio v. Benedict Co.,
It appears that the finality provision,
The plaintiff relies upon Entin v. Bristol,
The contract relied upon by the plaintiff in the instant case as a third party beneficiary is between the local and federal authorities. Both the plaintiff and the defendant have assumed that the federal agency would reimburse the local agency for any amount paid in satisfaction of the judgment which may be obtained. In that sense the judgment would "expend itself on the government treasury." UnitedPublishing Printing Corporation v. Horan, supra, 950. It is also clear from the testimony of a representative of the local agency that he did not regard himself as completely free to make removal expense claim determinations in accordance with his own best judgment. On several of the disputed items he *288 deferred to the dictates of the federal agency when his own recommendations were rejected. On any realistic view the federal authority is inextricably involved because its interpretations of the statute and regulations are the principal guideposts employed by the local authority in considering moving expense claims, and its prior approval is sought before any substantial claims are approved. In all respects, therefore, the federal authority is an indispensable party to the adjudication of the present controversy. Indispensable parties are "[p]ersons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience." Shields v. Barrow, 58 U.S. (17 How.) 130, 139; 3A Moore, Federal Practice § 19.07.
Although Practice Book § 109 indicates that nonjoinder of a necessary party should be raised by demurrer, and Practice Book § 62 provides that no action shall be defeated by nonjoinder, the absence of an indispensable party ordinarily requires dismissal of the action. 3A Moore, Federal Practice § 19.19. There are no considerations here which would warrant continuing the case for the purpose of joining the United States or the federal agency involved, since no effective service could be made on them.
It is ordered that judgment enter dismissing the plaintiff's action for lack of jurisdiction.