*1 Patsy Capozzi Jr., J. et al. Luciano, v. William Longo Js. Bogdanski, Loiselle,

Argued January 10, October 1977 decision released Robert R. Petrucelli, (plaintiff). appellant Richard K. for the Mulroney, (defend- appellees ants). an action plaintiff brought

Loiselle, constituted recover this sum alleging $10,800, The court found a loan to the defendants. *2 gift and $10,300 was a and that was a loan $500 judgment plaintiff accordingly. was rendered The appealed. has part,

The follows: of the court as is, nephew The the defendant William Luciano, Jr., many years plaintiff, Patsy Capozzi. For they plaintiff relationship, had a close which the characterized as closer than that which existed between William and his own father. In 1966, Joy William married the defendant Luciano. Over years, Bridgeport, couple the next four the lived in plaintiff visiting then the them on occa- Stratford, Throughout period, plaintiff sion. the married and he had no children of his own. by

In the were told their March, 1970, defendants they pur- landlord that must either move out or they Upon chase the house in which were tenants. hearing plaintiff of the defendants’ situation, concerning initiated a discussion the defendants’ purchase explained of a home. When William plaintiff he could not afford to do offered this, give pay to both off their defendants to $10,000 payment accumulated debts and make a down Subsequently plaintiff, a home. defend- at the request, they ants’ viewed a house had found Seymour, gave them $10,300. soon thereafter he writing No or memorandum marked the transaction money given to indicate whether the as a plaintiff frequent or a visitor loan. became a to new home he loaned the defend- and, mortgage payment ants for the $200 $300 purchase Joy. of a car for present plaintiff

In met his December, 1971, February Joy sep- In wife. William and transferring home arated, William the title to their Joy’s then in with the into name. William moved plaintiff. Upon hearing of the home the transfer of Joy, repayment to demanded plain- $10,800. William continued to reside with tiff until and served best man at June, 1972, as plaintiff’s July year. wedding in of the same support adequately found facts the court that was a $10,300 conclusions of them. to the defendants and loaned $500 assigned refusal of error in the has *3 twenty paragraphs draft of his the court to find finding. represent like would These facts that he upon conflicting evidence to have the find had court supporting or the of more detailed facts addition Fundamentally, his claims. he seeks to have retry Dom court the be done. case and this cannot A.2d browski v. 169 362 Dombrowski, 85, 86, Conn. 631, Trenchard v. 141 907; Trenchard, 627, Conn. Episcopal 109 Church A.2d Methodist 250; African 94 A.2d 618. The Jenkins, upon depended large measure decision this case credibility placed the testi the which the court mony Despite sweeping attack, the of witnesses. subject finding fact to correc the court’s of is 365 O’Connor, tion. Johnson supra, 86. Dombrowski, A.2d Dombrowski v. 814; con- that the court’s further claims given the defendants $10,300 clusion that gift unrea- intent that it be a the donative with Specifically, the light the facts found. of sonable inconsistent to be this determination finds constituted that the $500 conclusion with the court’s note no claiming instances, “in both that a loan, evidencing said executed instrument or written similarity not, is payments.” factual This

173 appendix to the determinative of the As the issue. plaintiff’s Joy own brief the defendant reveals, Luciano conceded that was a loan $500 gift. pertaining Thus, reasons not to the $10,300 sup- adequately court distinction made is ported inconsistency and no is found. plaintiff’s additional claim is properly gifts apply

did not of law loans and inter vivos to the constitute facts as found. “To personal property, a valid there inter vivos of possession delivery must be not property part donor also an intent on the pass immediately.” title shall Kukanskis v. 169 Jasut, Conn. Kriedel 29, A.2d 34, 898; Krampitz, 137 Conn. A.2d 532, 181. 534, proving burden of the essential elements of a valid upon party claiming gift. Kukanskis supra, Flynn Hinsley, v. Jasut, 35; Krampitz, supra, Kriedel v. 534. 351; Although in the silent conclusions are as to the allocation of the burden of *4 citing memorandum of Kriedel v. decision, Krampitz, supra, recognition reveals the court’s party gift. claiming that the burden falls on the argues In his brief, further that erroneously court, its memorandum of decision, applied proof, a lower standard of of fair a preponderance of the rather evidence, than clear satisfactory proof, required by and as such cases supra, Flynn as Kukanskis v. Jasut, v. and Hinsley, supra, requests 262. Nowhere in finding, assignments claims of law or in the of error record is there even a hint that such a claim ever made to trial court on would be raised appeal. repeatedly It has reiterated that

court will not consider claimed on the part errors of the court there trial unless has been compliance Williams, with Book.1 State 652 of the Practice Evans, State 322, 333, 72; Board 576; Weyls Zoning 327 A.2d Appeals, Only- 290 A.2d 350. of in the most court exceptional circumstances will this consider of law which were not claimed questions as of error the record. The error is not claimed constitutional dimension there in the nothing record or the briefs of either indicate that to party . . . of a funda- “clearly deprived trial.” State right mental constitutional and a fair Evans, 70. supra, error. There is no con- J.,

In this opinion Longo, curred. has The plaintiff (dissenting). erroneously the trial court

argued appeal fair that of of a lower standard applied than rather evidence, preponderance satisfactory proof. of clear and standard required are silent in its conclusions The trial court’s as also the burden of proof, as to by contended as standard of proof; decision of in its memorandum plaintiff, of burden their satisfied the defendants stated that evidence.” preponderance a “fair proof court. trial on the part error clearly This was 652. See. errors considered Book] “[Practice *5 appeal an on any errors to consider bound not be court shall This appears it unless assigned claimed they specifically unless are trial and at distinctly raised question was on the record appellant’s adversely to the by the court decided upon ruled was subsequent to trial.” claim, it arose or that

175 misapplication the law majority excuses this not raised ground error the claim of appropriate time. at generally con not this court will

It is true that compli there has sider errors unless claimed cases, In rare Book.1 ance with 652 of the Practice question so we have considered appellant’s right “not reason of raised, opinion, in it in our have determined because, justice public or of the interest of the welfare ought parties Kavanew between the it to be done.” sky Appeals, Zoning 397, Board of (1971); Leary Manu & 401, 279 A.2d 567 v. Citizens 23 479, Conn. Bank, 475, National 128 facturers A.2d (1942); Burlingame, 123 863 Boardman v. (1938). Conn. In such as 646, A. 761 a case 655, 197 the one before where the error is clear and us, may one it which determinative, well have been “justice should be considered in the interest of parties.” between the money only issue in the whether the case was question evidence was a or a loan.

presented par- testimony conflicting majority notes, ties and their witnesses. As the large depended “[t]he decision in case placed upon credibility measure which testimony The defendants on the of the witnesses.” proving burden of that a valid had the 362 Jasut, made. Kukanskis Hinsley, Flynn (1975); 142 Conn. 898 Krampitz, (1955); A.2d 351 Kriedel (1951). had Thus, A.2d 181 majority opinion. See footnote 1 of the *6 higher proper proof —and —standard applied, the plaintiffs might very well have pre- vailed.

The application of the wrong standard of proof, in the particular circumstances case, grounds for a new trial, at the very because least, the case was tried to the it court, should be remanded to the trial judge a further determina- tion of whether, upon application of the proper standard of conclusion stand. can

In this case, majority holding, sustaining erroneous judgment trial court because of a failure to comply with Practice Book 652, results in a substantial injustice.

In this opinion Bogdanski, concurred. Henry V. J. Gwiazda Stanislav et al. v. Kiszkiel et al. Longo J., Loiselle, Bogdanski, Js.