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CORNELL, J. In this action of foreclosure, the controversy is concerned with the relative priorities of certain defendant junior encumbrancers—first as between two holders of mortgages, Mildred Buchta and Julia E. Barnard and, second, as between Mildred Buchta and a mechanic's lienor, The Hatch 6? Bailey Company. As between Mildred Buchta and Julia E. Barnard, the following situation is delineated by the evidence: On September 19, 1936 the defendant Malkin owned the equity in the real estate under foreclosure which was at that time subject to three mortgages. On that date he executed and delivered to-the defendant Mildred Buchta a fourth mortgage in the sum of $700 which, however, was not recorded at that time, nor until August 4, 1937. In the interim, on May 10, 1937, the defendant Malkin conveyed his interest in the equity to the defendant C. Lindsay Sutherland, free and clear of all encumbrances except zoning regulations and "mortgages as appear of record." There is no evidence to indicate that Sutherland either had actual knowledge or notice of any circumstance which, if pursued by inquiry, would have apprised him of the fact that the defendant Buchta at the time was the holder of the unrecorded mortgage delivered to her on September 17, 1936. In view of this circumstance, and because defendant Buchta failed to comply with the requirements of section 5010 of the-General Statutes, Revision of 1930, in neglecting to record' her mortgage within a reasonable time following its delivery to her, Sutherland acquired a title to the property free from the lien of the Buchta mortgage. Second National Bank of New Haven vs. Dyer, 121 Conn. 263; Cressey vs. Phelps, 2 Root 420. On July 27, 1937 and while the defendant Mildred Buchta's mortgage was still unrecorded, defendant Sutherland executed and delivered a mortgage on the premises to defendant Julia E. Barnard, in the sum of $1,000, which, however, was not immediately recorded nor until August 9, 1937 and in the meantime, on August 4, 1937, defendant Mildred Buchta filed for record the mortgage which had been given to her by defendant Malkin on September 19, 1936. Defendant Buchta on this state of facts, contends that since her mortgage was recorded prior to defendant Barnard's, it is an encumbrance senior to it, by virtue of section 5010 of the Ceneral Statutes, Revision of 1930, which provides in part: "No conveyance shall be effectual to hold any land against any other person but the grantor and his heirs, unless recordeo on the records of the town in which the land lies ." In the absence of countervailing equities, that would be so if the grantor of the Buchta mortgage still had title of record when the latter was filed in the town clerk's office and the grantor of the Barnard mortgage had been Malkin instead of the latter's successor in title, Sutherland. But defendant Barnard was justified in relying upon the title to the land as the record disclosed it and this informed her that the title in the name of Sutherland, who was her grantor, was free of a mortgage given either by the latter or any of his predecessors in title to defendant Buohta. "The basis of the protection so afforded is an equitable estoppel which arises out of the fact that the person who has failed to record the instrument under which he claims has thereby misled creditors into the belief that title is in the person who appears upon the record to own the property. . . . The person claiming the property may have a good title to it, but as against anyone who is entitled to rely upon the record he is barred from asserting that title." Second National Bank of New Haven vs. Dyer, 121 Conn. 263, 271. The defendant Barnard, moreover was chargeable with notice only of recorded conveyances made by the defendant Sutherland during the time that the title stood of record in the latter's name. Hawley vs. McCabe, 117 Conn. 558, 563, 564; Wheeler vs. Young, 76 Conn. 44, 51. It follows that the defendant Barnard's right to redeem and the order in which she is entitled to do so is not affected by the recording of the Buchta mortgage prior to her own and her mortgage has priority over defendant Buchta's. It next appears that on or about September 22, 1937 Malkin delivered to defendant Buchta an assignment drawn on defendant Sutherland in favor of defendant Buchta requiring Sutherland to pay to her the sum of $166 out of a balance of the purchase price of the property owing by Sutherland to Malkin, which the latter caused to be delivered to defendant Sutherland on that date and incidentally to this, defendant Sutherland then learned of the existence of the Buchta mortgage. Thereafter, on October 1?, 1937 Sutherland conveyed his equity in the mortgaged premises to the defendant, The Stamford Housing Corporation, by deed recorded on that date, and on November 15, 1937 The Stamford Housing Corporation executed and delivered a mortgage to defendant Julia E. Barnard in the sum of $500. Defendant Buchta claims priority over this, contending that, unlike the situation with respect to the mortgage delivered to defendant Barnard, on July 27, 1937 (1) the Buchta mortgage already appeared of record at the time that the $500 mortgage was executed to defendant Barnard, and (2) the defendant Sutherland had actual knowledge of the fact that Malkin had given the mortgage to defendant Buchta and as he was president of the defendant, The Stamford Housing Corporation, the latter was, also, charged with such knowledge. Without so deciding, it may be granted that The Stamford Housing Corporation had actual knowledge of the existence of the Buchta mortgage at the time it gave the $500 mortgage to defendant Barnard. The seemingly well established rule, however, is ". . . that if a second purchaser for value and without notice purchases from a first purchaser who is charged with notice, he thereby becomes a bona fide purchaser, and is entitled to protection." 1 Pomeroy, Equity Jurisprudence (4th ed.) §754. There is no evidence that either Sutherland, personally, or as president of The Stamford Housing Corporation, communicated any information to defendant Barnard to the effect that defendant, Buchta, claimed an interest in the premises as a mortgagee or that defendant, Barnard, herself acquired such knowledge from any other source or intelligence such as, if pursued by inquiry, would have led to the ascertainment of that fact. Neither can defendant Barnard be charged with constructive notice derived from the fact that the Buchta mortgage was recorded at the time that she accepted the $500 mortgage from The Stamford Housing Corporation. That mortgage was, as noted supra, from Ward G. Malkin to Mildred Buchta, but when it was filed, the record title was in the name of defendant Sutherland- "It is a settled doctrine . . . that a record is only a constructive notice to subsequent purchasers, deriving title from the same grantor." 2 Pomeroy, Equity Jurisprudence (4th ed.) §658. The recording of the mortgage from Malkin to Buchta while the record title was in the name of Sutherland, was, consequently, no constructive notice to defendant Barnard in accepting the mortgage from The Stamford Housing Corporation. Baker vs. Griffin, 50 Miss. 158; Hawley vs. McCabe, supra; Kulmacz vs. Milas, 108 Conn. 538, 541, 542. The mortgage in question is, hence, entitled to priority over the Buchta mortgage. As respects the question of priority between the Buchta mortgage and the mechanic's lien filed by the defendant, The Hatch & Bailey Company, the following facts appear: The: Hatch & Bailey Company commenced to furnish materials on June 7, 1937 and recorded its lien on November 8, 1937. As. noted supra, the Buchta mortgage was dated September 19, 1936 and hence was delivered approximately nine months before the first material was delivered to the premises by The-Hatch & Bailey Company. On the other hand, the date when materials were first commenced to be furnished by The-Hatch & Bailey Company antedates the day when the Buchta. mortgage was recorded (August 4, 1937) by about two months. It, hence, appears—eliminating from consideration! the effect, if any, of the recording of the Buchta mortgage-only after the grantor in it had parted with the title of record—that the Buchta mortgage though given prior thereto,, was, nevertheless, not recorded until subsequent to the time when the mechanic's lien of The Hatch & Bailey Company-had "originated." Moreover, the period during which The Hatch & Bailey Company continued to furnish materials began on June 7, 1937 and ended November 5, 1937 from which the inference is drawn that the house for which such materials; were furnished was during that time in course of construction. This granted, it becomes manifest that the date on which theBuchta mortgage was recorded (August 4, 1937), was during the period of such construction. It is provided by section' 5015 of the General Statutes, Revision of 1930, that: "If any instrument constituting a valid incumbrance upon such land other than a mechanic's lien shall be filed for record while, such building is being constructed, raised, removed or repaired', all such mechanic's liens originating prior to the filing of such incumbrance for record shall take precedence over such incumbrance. ." These provisions, it is apparent, make the: criterion of priority, not precedence in creation of a valid encumbrance by an owner of property, over a mechanic's lien, but the recording of it, provided the structure for which labor or materials are furnished is then in course of construction, removal, repair or raising. Since the Buchta mortgage, if otherwise valid and prior to the mechanic's lien of The Hatch 6? Bailey Company, was not recorded until after the latter's lien had originated and the building was then still being constructed, it follows that such mechanic's lien had priority over it.

ELLS, J. The plaintiff has sued Joseph and Gates, and Joseph, Incorporated. It is alleged that the Josephs, as real estate brokers, interested the plaintiff in a certain piece of real estate and falsely and fraudulently represented that the lowest price was $10,000 for ten acres and the buildings thereon; that the premises were part of a 36'acre parcel owned by the Thorston Realty Co., listed with Joseph, Inc.; that the plaintiff paid the price; that the Josephs secretly acquired the 36 acres for $8,300, and took title in Gates's name, Gates being a dummy, who conveyed 18 acres to the plaintiff, and retained 18 acres. The plaintiff asks that the remaining 18 acres be conveyed to her, for damages, and such other equitable relief as may be proper. First as to the demurrer of Gates. The seventh ground is that it does not appear Gates participated in any fraud that may have been practiced. It does not appear anywhere in the complaint that Gates had any knowledge of any fraud, or that he knew of or participated in any false or fraudulent representation. Therefore, in so far as the complaint as it now stands is concerned,, he is out, and his demurrer is sustained. As to the demurrer of the Josephs'. The complaint does, allege that a fraud was practiced; and that it was in violation of the duty the Josephs owed to their principal; and that she was damaged thereby. This demurrer is overruled. As to the demurrer to the prayer for relief. The brief discussion of the previous demurrers covers this one also, and this demurrer is overruled, as to the Josephs. Gates is not concerned, his demurrer as to the merits of the case having been heretofore sustained.

McEVOY, J. On November 12, 1937, at about 5:00 to 5:15 p.m., the defendant owned and was operating a 1935 model four-door Oldsmobile sedan on the north cement panel or lane of the Boston Post Road in a westerly direction easterly of the town of Branford, Connecticut. The road was divided into two cement panels or lanes, each ten feet wide, with the shoulders on the northerly side substantially three and a half to four feet in width. The road was practically level and it was dry. The weather was clear. On that day the sun set at 4:36 p.m. As the defendant proceeded westerly along the Boston Post Road the speed of his car, just prior to the incident out of which this action arises, was about 40 miles per hour; there was no traffic from the west, but, at least two cars were following the defendant in a westerly direction. The defendant's two forward headlights were on and shone brightly. His two taillights were also functioning and the wheel brakes and the emergency brake were in good order. As the defendant proceeded westerly he saw an object on the northerly concrete lane and ahead of him along which he was driving and this object was lying diagonally across the lane, upon which the defendant was driving, at an angle of about 45 degrees. At that time the defendant was operating his car at about 40 miles per hour. The defendant's forward lights were not then set at their "long distance" height but were set on a "running light" standard such as is commonly used in city traffic. By the use of the lights as set the defendant could see objects in front of him for a distance of from 200 to 250 feet. When the defendant first saw the object lying on the road ahead of him he mistakenly supposed than it was a human body and it was then between 150 to 200 feet ahead of him. If the defendant had applied his foot brakes when he first saw the object in front of him he could have stopped his car, which he was then operating at about 40 miles per hour, in the space of 126 feet. The defendant also had available for use an emergency brake which he could have but did not use. As the defendant's car approached the object in the road the defendant gradually reduced his speed and, suddenly, without any warning, the defendant turned his car abruptly to the south—defendant's left—at a sharp angle so that it entered, diagonally, upon and partially across the southerly or eastbound lane of the concrete panel of the road. Prior to that time the plaintiff was operating a Chevrolet business coupe, 70 days old, equipped with brakes and lights which were in good working order and, at least, one horn, a Klaxon. The plaintiff was accompanied by two mates from the Naval Academy and was on his way from New London to Washington, D. C., and had followed the defendant's car for several miles. Approaching the locus in question the defendant was followed by another car and then by the plaintiff's car, which latter was being operated at a speed of about 40 to 45 miles per hour. Upon entering the straight stretch of road, adjacent to poles No. 36357 and No. 36558, the plaintiff undertook to pass to the left of the car then following the defendant's car. The plaintiff gave reasonable warning of this intention by an audible, sustained blowing of the Klaxon horn. When the plaintiff attempted to pass to the left of the defendant's car the road was straight; no traffic was approaching from the west, nor was any other traffic approaching from the east; the space was ample and the plaintiff acted as a reasonable man, so placed, would have acted, that is, he acted with reasonable care under all of the circumstances then surrounding him. When the defendant suddenly turned his car sharply to his, defendant's, left-hand side he did so without having given any reasonable indication or signal of his intention so to do and he acted, not as the ordinarily prudent man, so placed, would have acted, but negligently and carelessly. Under the circumstances the defendant was "not required to act as an absolutely prudent man would, but as a reasonably prudent man would. He (was) not necessarily required to use good judgment or to make good use of his senses; (but) he (was) required to use such intelligence, understanding, judgment and care as the reasonably prudent person would use under like circumstances." Ezzo vs. Geremiah, 107 Conn. 670, 676. As the defendant suddenly turned to his left directly in front of the plaintiff, the latter immediately made every reasonable effort to avert a collision with the car of the defendant and promptly turned to his, plaintiff's, left and applied his brakes, in an endeavor to go around the car of the defendant but, while engaged in this endeavor, the plaintiff's car "slewed" around and its side collided with a pole which was off the left side of the road and with such force that, although the pole was severed in twain, yet the severed end dropped to the ground and yet the pole remained erect. By reason of the collision with the pole the plaintiff was thrown out of the car on to the ground and one of his mates, who was riding with him, was also thrown out so that he fell on top of the plaintiff and the plaintiff was seriously and severely injured. The injuries to the plaintiff were occasioned by the negligence of the defendant, both common-law and statutory, and the negligence of the defendant materially contributed to and was a substantial factor in causing the injuries to the plaintiff, and nothing which the plaintiff did or omitted to do materially contributed to or was a substantial factor in causing any of the injuries which he sustained and suffered. The injuries which the plaintiff sustained may fairly be described as follows: a transverse fracture of the upper third of the left femur; a severe laceration on the left side of his forehead, which has occasioned a permanent scar; an abrasion on the left side of the plaintiff's chin; abrasions on the left arm and left hand and an injury to the plaintiff's back. The treatment of these injuries was prompt and well ordered. The bone of the leg was set and placed in a heavy plaster spica extending upward to the nipples. Subsequently, on December 6, 1937, the spica was removed; a better alignment made, and the spica replaced. On December 22, 1937 the spica was again removed and an operation performed by way of treatment of lyplastis cast. Again on January 24, 1938 the cast was removed and treatment given to correct "bowing" and the cast reapplied. These varying treatments continued almost to the date of the trial. Upon the trial it appeared that the plaintiff still has considerable limitation in the movements of his left leg and that its function is about 66 per cent normal. He still has a decided "limp" and the prognosis is that this limp will continue until plaintiff obtains complete relief in the knee-joint. By reason of these injuries the plaintiff has been delayed in his studies and normal preparation and has, and in the future will, sustain loss by this reason. An examination of the hospital records and of the general medical and surgical history clearly shows that the plaintiff has undergone constant and, sometimes, excruciating pain. The hospital record shows an absence of audible complaint on the part of the plaintiff but it also indicates fortitude, patience and cooperation on the part of the plaintiff, and that he did everything possible to mitigate damages. His whole attitude in narration of facts and description of injury and the attendant suffering and discomfort was refreshingly candid and might well be characterized as under-statement rather than exaggeration. By reason of these injuries the plaintiff has become obligated as follows: 1. Expense for nurse.........................................................$ 8.00 2. Grace Hospital.................................................................. 157.41 3. Dr. Alpert .-............................... 15.00 4. Dr. Levy . 75.00 5. Dr. Overman...................................... 150.00 These items total..................................................................$405.41 In addition to this obligation the plaintiff's advancement to a higher stand at the Naval Academy has been delayed; his studies postponed and his advance in compensation halted. He has also received, without apparent charge to him, valuable medical, surgical and other services at the Naval Hospital, and he is, to some extent at least, still receiving or liable to receive these services. In Hayes vs. Morris & Co., 98 Conn. 603, 607, quoting from Sutherland on Damages, our Supreme Court said: "General' ly there can be no abatement of damages on the principle of partial compensation received for the injury where it comes from a collateral source, wholly independent of the defendant, and is as to him res inter alios acta . . . ." In subsequent cases the same principle has been applied to medical, surgical and hospital services rendered to the injured person. No evidence was offered upon this trial as to the reasonable value (to the defendant) of these services. Upon another trial such evidence might be pertinent. Prior to the sustenance of these injuries the plaintiff was enlisted in the United States Navy; 23 years old; 70 inches high; weighed 165 pounds; and was in about as good mental and physical condition as a human being may be. He suffered severe injuries and unusual pain. The issues are found in favor of the plaintiff and against the defendant and judgment may be entered in favor of the plaintiff to recover of the defendant his actual obligations in the sum of $405.41. To which is added for injuries, pain and suffering $4,000. Total, $4,405.41. For this sum and his costs judgment may be entered in favor of the plaintiff and against the defendant.

ELLS, J. Both the motion and the plea are based on an allegation that it appears from the complaint that the executor has never qualified as executor in Connecticut. It does not so appear. The complaint does not state whether or not the executor has thus qualified. At most, failure to qualify here is a defense, to be pleaded in the answer. The complaint states a good cause of action, and upon proof of its allegations the plaintiff will prevail unless the defendant, in a proper pleading or by objection to evidence raises the issue. The question is not properly before the Court on the present motion and plea. The motion is denied and the plea overruled.

O'SULLIVAN, J. During 1935, Joseph Ruitto, a dairy farmer, owned two trucks. One was a Dodge; the other, a Ford. The latter was used exclusively upon the farm; the former, to deliver milk to his customers. He carried liability insurance on each car with a Hartford company throughout 1935 until the policies were cancelled on December 30th. On that morning, which was immediately after receipt of the notice of cancellation, Ruitto's son John, at his father's orders, phoned the office of a Mr. Buggie, agent of the defendant insurer and authorized to bind risks, and asked Mrs. Buggie, who answered, to inform her husband that John's father wished the agent to call at his home in Portland to talk about liability insurance on a truck. At noon when Buggie returned, his wife delivered the message, but due to other engagements he was unable to leave for Ruitto's home until about 7 o'clock Jn the evening. At apparently the same time, Ruitto left for Buggie's home in Cromwell, and, finding him absent, awaited his return from Portland. When Buggie arrived they discussed the matter of insuring the Dodge, and after obtaining certain data, Buggie filled out an application, and then stated that the policy to be based upon it would be binding from the time of the telephone call to Mrs. Buggie in the morning. On the following day, Buggie forwarded the application to the underwriting department of the defendant insurer. Some 15 to 30 minutes before Buggie and Ruitto had set out from their respective homes, the Dodge, while being operated by Ruitto's son in the course of delivering milk, was involved in an automobile collision in Middletown. In spite of a spirited claim to the contrary, I am confident that the first knowledge of this accident reached Ruitto only after he had returned to his home about 10 p.m. Buggie learned of it when reading his newspaper the next morning and received additional information when Ruitto orally reported its occurrence later on the •same day. On January 10, 1936, Buggie received from the underwriting department of the company a liability policy for the Dodge, which by its terms purported to cover the truck for one year from 12:01 a.m. on December 30, 1935. This was in accordance with the application. Buggie examined the policy, countersigned and then delivered it to Ruitto, who put it away for safe keeping without having read it. The plaintiff had been injured in the accident above referred to, and, on December 8, 1936, after bringing suit against Ruitto and his son, obtained a judgment for $1,548.50 against both. That action was defended by attorneys for the insurer under a non-waiver agreement. Thereafter an appeal was taken under a similar reservation of rights to the Supreme Court of Errors, which affirmed the judgment against Ruitto and his son. Grillo vs. Bonauito, 123 Conn. 226. The present litigation involves the right of this plaintiff, as a judgment creditor of Ruitto, to recover under the policy in view of section 4231 of the General Statutes, Revision of 1930, and of certain defenses raised by the answer. By an order of court, based upon a motion of the insurer, Ruitto and his son were cited in and have appeared as parties defendant. This course was pursued after the defendant insurer had filed a cross-complaint seeking reformation of the policy. To make reference to an elementary rule of law, it is obvious that the minds of the parties did not meet until after the accident occurred. No contract came into being until after that event. By its terms, however, it was to function retroactively and from this fact arises the problem as to whether liability insurance can antedate in its coverage the time of its issuance so as to insure against events that have already occurred. At first blush, it may seem anomalous that a policy of insurance could cover such a situation. Nevertheless, precedents in analogous cases in the field of marine and fire insurance furnish guiding authority for the instant case. It is a familiar principle of marine insurance that a policy on a vessel which has previously been totally lost, but of which the owner has no knowledge at the time of procuring the insurance, is valid. Arkansas Ins. Co. vs. Bostick & Ryan, 27 Ark. 539; Paddock vs.Franklin Ins. Co., 11 Pick. (Mass.) 227. This is, in effect, a stipulation for indemnity against past as well as future losses. Hooper vs. Robinson, 98 U.S. 528, 25 L. ed. 219. Nor is it essential that the phrase "lost or not lost" appear in the policy. "The phrase 'lost or not lost' is not necessary to make a policy retroactive. It is sufficient if it appear by the description of the risk and the subject-matter of the contract that the policy was intended to cover a previous loss. Contracts of the kind are as valid as those intended to cover a subsequent loss, if it appears that the insured as well as the underwriter was ignorant of the loss at the time the contract was made." Insurance Co. vs. Folsom, 18 Wall. 237, 251, 21 L. ed. 827, 833; Hughes vs. Mercantile Mutual Ins. Co., 44 How. Prac. (N.Y.) 351. The vital question is one of good faith. These same principles have been applied to fire insurance. Security Fire Ins. Co. of N. Y. vs. Kentucky Marine and Fire Ins. Co., 7 Bush (Ky.) 81, 3 Am. Rep. 301; Wales vs. N. Y. Bowery Fire Ins. Co., 37 Minn. 106, 33 N.W. 322; Commercial Ins. vs. Hallock, 27 N.J.L. 645; El Dia Ins. Co. vs. Sinclair, 228 Fed. 833 (certiorari denied, 241 U.S. 661). Nor is it ultra vires for an insurance company to issue a policy to act retroactively, unless it knows that the property presumed .to be covered is nonexistent. Henshaw vs. Insurance Co., 30 Misc. 405, 73 N.Y.S. 1. Parties to a contract have an inherent right to assume obligations antedating their agreement if they so elect, if there is good faith and if the contract is supported by consideration. Continental Casualty Co. vs. Industrial Commission, 61 Utah 16, 210 Pac. 127. There is no sound or appealing reason to require the placing of liability insurance, in the respect under discussion, in a category different from that occupied by marine and fire policies. Accordingly, on the authority of the cited precedents, it is determined that the defendant insurer's policy was retroactive in nature and provided coverage during the period expressly stated. By way of parenthesis at this point, it should be observed that whether Buggie exceeded his authority in binding the risk from the beginning of the day is of no moment. This action is not based upon the oral binder made during the evening of December 30th. The action is upon the policy issued by the home office after it had knowledge, through a familiar rule of law, that an accident had occurred during the period covered by the binder, because, as will be recalled, on December 31st Buggie obtained full information about it. Under the conditions and limitations outlined in McKay vs. Aetna Life Ins. Co., 118 Conn. 538, his knowledge was imputed to his principal. Nevertheless, some ten days after it had received the application, the insurer issued its policy, forwarded it to Buggie, who, on January 10th examined and countersigned it and then delivered it to the assured. On January 20th, the home office received a report from an independently conducted credit agency, in response to an inquiry of the insurer. This report recited that "a civil suit is pending involving the son who was in a recent accident. . .about three weeks ago." Still, the insurer did nothing save to write some interdepartmental notes and memoranda concerning the desirability of the risk. In the meantime it accepted and retained the premium which Ruitto had paid. On April 22nd, it issued an endorsement to reduce the premium rate. By this endorsement, it appears that the term of the policy to which it appertained "shall be from 12:01 a.m. on December 30, 1935", and that "nothing contained (in the endorsement) shall waive, vary, alter or extend any provision in the policy other than" as affecting the rate. And finally, when the policy was cancelled on April 22nd, the insurer returned what it claimed was the unearned premium. Yet the proof is so lacking in preponderance and clarity that it is impossible to state whether any allowance was made for that portion of the term for which Ruitto had paid but which, it is claimed, was beyond the real period of coverage. Surely from these impressive circumstances, no serious question can be made against the ratification of the action of the agent in binding the risk as he did. But, the insurer argues, there was an absence of good faith, which, if not actually characterising Ruitto's dealings with Buggie, was none the less present by legal implication. Its claim is that Ruitto had imputed knowledge of the accident in that the law presumes he knew such facts as came to the attention of his son while driving the Dodge in the course of his employment. Counsel cite the famous case of Proudfoot vs. Montefiore, L.R. (1867) 2 Q.B. 511, which held that where a shipping agent knew of the loss of a vessel but failed to communicate the information immediately by telegraph to the owner who, he knew, was about to apply for -marine insurance on the vessel in ignorance of the loss, the agent's knowledge was the owner's knowledge, thus rendering fraudulent the latter's application for the insurance. An insured is under obligation to disclose not only such facts as are known to him, but also those facts known to his agent, provided (1) it is the agent's duty to acquire and communicate information of the facts in question, and (2) it is possible for the agent, in the exercise of reasonable diligence, to forward such communication before the making of the insurance contract. Vance, Insurance (2nd ed. 1930) p. 354. Obviously, Ruitto's son did not have ample time to inform his father. Directly after the accident the son had been arrested and was in the custody of the police until long after the contract was made. In the light of these circumstances, knowledge cannot be imputed to Ruitto. Another claim of the insurer is that the plaintiff, as a contract beneficiary, has no standing since there is neither allegation nor proof of the insolvency of the assured evidenced by return of execution against him unsatisfied. This claim is advanced because of a provision in the policy that "the insolvency or bankruptcy of the insured hereunder shall not release the Company from the payment of damages for injuries sustained or loss occasioned during the life of this policy, and in case execution against the insured is returned unsatisfied in an action brought by the injured, because of such insolvency or bankruptcy, then an action may be maintained by the injured person against this Company under the terms of this policy, for the amount of the judgment in the said action not exceeding the amount of this policy. The policy sets forth thar the insurer shall pay on behalf of the assured all sums which the latter shall become obligated to pay by reason of liability imposed upon him by law. There is no longer any need to answer the one-time vexing question as to whether such a contractual provision classifies the policy as one against loss rather than liability. Morehouse vs. Employers' Liability Assurance Corp., 119 Conn. 416. The legislature has annihilated the distinction by declaring that "each insurance company which shall issue a policy to any person... .insuring against loss or damage on account of the bodily injury... .of any person.... for which loss or damage such person.... is legally responsible, shall, whenever a loss shall occur under such policy, become absolutely liable, and the payment of such loss shall not depend upon the satisfaction by the assured of a final judgment against him... .Upon the recovery of a final judgment against any person... .for loss or damage on acount of bodily injury. . .if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment shall not be satisfied within thirty days after it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment" (Gen. Stat. [1930] §4231). This statute, being in force on December 30, 1935, must be regarded as entering into and forming part of the contract. 2 Cooley, Briefs on Insurance (2nd ed., 1928) p. 1102. Nor may it be nullified by the insurer inserting a counteracting clause in the policy to the contrary. Chandler vs. John Hancock Mutual Life Ins. Co., 180 Mo. App. 394, 167 S.W. 1162. The provision of the policy, above recited, does not have the significance which the insurer attaches to it. However, if it did, it would be of no moment because of its antagonism to the statute. This plaintiff need not allege or prove the insolvency of Ruitto. It is ample if it is shown that a judgment was rendered against the assured which was not paid within 30 days after its rendition and "if the defendant in such action was insured against such loss or damage at the time when the right of action arose." Continuing in its claim that this plaintiff has no standing, the insurer argues that as a factual matter the insurance was not in force at the time of the accident. If, by this, it means that the contract post-dated the time when the accident occurred, no challenge may be successfully made upon the truth of that assertion. But that is not the controlling factor. The unmistakable intent of the statute conferring the right of subrogation upon an injured party is to compel an insurer to pay directly to such injured person any judgment obtained against another who has paid for and been given coverage for the events upon which the judgment was rendered. Ruitto's policy, by retroaction, was such that he was insured against loss at the time when the plaintiff's right of action arose. Had Ruitto paid the judgment, he could have collected from the company. It would be far too strained to hold that, under the peculiar facts of this case, a judgment creditor cannot be subrogated "to all the rights of the defendant." The plaintiff ought to recover, then, unless other defenses bar that right. Throughout the case, the insurer has insisted that the policy was issued through a mistake and by its answer asks the court to deny recovery for the plaintiff and by its cross-complaint seeks to reform the policy so that the time of coverage shall commence at 9 p.m. on the evening of December 30th. What occurred on that evening, does not suggest, let alone establish a mistake on the part of either party. Nor was there fraud or bad faith to taint their dealings. Buggie bound the risk and both he and Ruitto intended to have issued exactly what subsequently was issued in the form of a policy. Any claim to the contrary is unfounded. Another defense raised by the insurer is that no immediate written notice of the accident was given by the assured, as required by condition C of the policy. Where such a condition is found in an insurance contract, the furnishing of a written notice is a condition precedent to any right of action upon the policy. Lee vs. Casualty Co. of America, 90 Conn. 202. This limitation extends to one claiming to be subrogated to the rights of the assured. Harris vs. Phoenix Insurance Co., 35 Conn. 310. However, the insurer may waive the condition and in this case has done so by a denial of liability on other grounds. 7 Cooley, Briefs on Insurance (2nd ed., 1928) p. 6019, and cases cited. The non-waiver agreement, drawn by counsel for the insurer, made no mention of a failure to receive immediate written notice from Ruitto. This agreement must be strictly construed and not be extended by implication. Beauchamp vs. Retail Merchants Ass'n., 38 N.D. 483, 165 N.W. 545. The condition set forth in the policy has been waived. A further defense of the insurer is based upon an alleged incorrect statement found not only in the application but also in the schedule, so-called, in the policy. Item 11 of this schedule recites that "no company has cancelled motor vehicle liability insurance for the named assured (Ruitto) during the past three years, except as follows: no exceptions." This was obviously not a correct statement of the fact, because only just prior to seeking insurance from the defendant insurer, a Hartford company had cancelled a liability policy upon the Dodge. The circumstances accounting for this statement in the schedule were not of Ruitto's creation. While he was in Buggie's home on the evening of December 30th, the latter took from his desk an application form and wrote in the appropriate spaces the answers to various questions. At no time did he inquire whether any company had previously cancelled a liability policy. On his own initiative, and unbeknownst to Ruitto, he placed the symbol "no ex" after the query in question. Ruitto is an Italian, unable to read, and scarcely able to write his own name. The application for insurance was never shown to him nor did he sign it either before or after it was filled out. As is customarily done in every day practice, he accepted and relied on the statement of the agent that the risk was covered. When the policy was delivered to him, after it was inspected by Buggie, he did not read it, nor could he have done so save through the kindness of another. The general rule is that where a person of mature years and who can read and write, accepts a formal written contract affecting his pecuniary interests, it is his duty to read it and notice of its contents will be imputed to him if he negligently fails to do so; but this rule is subject to qualifications and it applies only if nothing has been said or done to mislead the person sought to be charged or to put a man of reasonable prudence off his guard in the matter. Ursini vs. Goldman, 118 Conn. 554, 562. To require Ruitto, uneducated as he was, to pore over the fine print óf as technical an instrument as an insurance policy in order to ascertain if some representation which he had never made was inaccurately stated by the insurer, and failing so to do, to impute knowledge to him of such inaccuracy in a policy which he had been expressly told would protect him against liability, defies the fundamentals of common sense and everyday practice, and furthermore goes far beyond the rule above stated. Under all of the circumstances, there was no duty on his part, at any time, to read the policy, nor is knowledge of the misstatement to be imputed to him. Back vs. Peoples National Fire Ins. Co., 97 Conn. 336. Finally, an insurer is estopped to urge the falsity of representations contained in its policy where they were inserted without the knowledge or consent of the insured, who made no representations whatever concerning the matter to which they relate. Davern vs. American Mutual Liability Ins. Co., 241 N.Y. 318, 150 N.E. 129; Sawyer vs. Equitable Accident Ins. Co., 42 Fed. 30; Baker vs. Ohio Farmers' Ins. Co., 70 Mich. 199, 38 N.W. 216; Walker vs. Fireman's Fund Ins. Co., 114 Ore. 545, 234 Pac. 542; North River Ins. Co. vs. Lewis, 137 Va. 322, 119 S.E. 43; Collum vs. National Fire Ins. Co., 181 Wis. 425, 195 N.W. 333. Judgment will therefore enter for the plaintiff to recover $1,798.15 from the defendant insurer. This represents the amount of the judgment obtained in 1936, together with interest thereon and the taxable costs of that action. Judgment may further enter on the cross-complaint for the plaintiff and the defendants, John and Joseph Ruitto, and for the two latter to recover their costs.

Memorandum of decision on remonstrance to referee's report. CORNELL, J. The remonstrance is addressed, not only to the content of the referee's report, but also to the recommendations and expressions of opinions in it as these are explained in a "Memorandum Supplementing Report of State Referee" submitted following the filing of the report. Such recommendations and opinions form no part of the report and hence, are not proper subjects of remonstrance. Hegel vs. Hegel, 99 Conn. 18, 19; Meserole vs. Liquor Control Commission, 125 id. 104, 106; Skarzynski vs. Liquor Control Commission, 122 id. 521, 526. In the part of the remonstrance which may be considered, .the contention advanced is that the facts recited in paragraphs 6, 7, 8 and 11 of the original report, as well as those stated in the memorandum supplementing it, are found without evidence. In such supplemental statement, only one material fact; additional to those appearing in the original report, is exposed, viz., "that the relative financial resources and abilities of the parties. . .prevailed substantially during all the period covered by the arrearages", in payments for the support of the children which plaintiff was required to make. This is, itself, an ultimate fact drawn from the subordinate facts recited in the paragraphs in the original report at which the remonstrance is leveled. The validity of its content is hence dependent upon whether the attack upon such subordinate facts is successful. The entire transcript has been examined and the conclusion is that the facts recited in the named paragraphs (i.e. 6, 7, 8 and 11 of the original report) are amply supported in the evidence. In consequence, the remonstrance is overruled in all of its aspects; the report is accepted and judgment must enter as the court may determine from the facts found. On June 30, 1939, the defendant was granted a decree of divorce upon a cross complaint filed by her. There were thfin. living—and Still are—three minor children, issue of the marriage, the care, custody and education of whom was committed to-the defendant. In addition to a lump sum of $750 awarded to defendant as alimony, the plaintiff was ordered to pay her "$50. monthly for the support of each child" while in her custody. Unquestioned findings in the referee's report show that ever since the decree of divorce was entered, one of the daughters has remained with the plaintiff and that the other two children stayed with-him, also, until June 20, 1940, since which latter date, and at the time of the hearing before the referee, they have been with the' defendant. In consequence, the plaintiff has been under the obligation of paying to the defendant in accordance with such order the sum of $50 per month for the support of each of such children since the day mentioned. This, however, he has wholly failed to do. In the original motion filed by him on September 11, 1940, plaintiff, in substance, alleges that prior to the filing of the decree of divorce, the parties had entered into a stipulation governing the subjects of custody of the children, and allowance for their support and maintenance, according to which the custody of the children was to be divided between the parents. However, it is stated that through error the court was not fully informed of the alleged agreement and as a result, the judgment in awarding sole custody to the defendant was "contrary to the intentions of the parties as expressed in said stipulation." The court is urged to "re-open said decree of divorce, and after hearing the parties, modify said decree in such manner that it shall accord with the agreements and stipulations of the parties. . " However, in so far as the alleged nonconformance of the decree with the asserted stipulation relates to the matter of custody of the children it is no longer of any consequence in view of the fact that, as hereinafter appears, the court adopts the referee's recommendation that the custody be henceforth divided—a solution in which the parties evidently concur. A question seems to have arisen, whether under this motion, the relief sought included that of modifying the judgment to conform to the stipulation of the parties as respects the sums to be paid by the plaintiff toward the support of the children while they might be in defendant's custody. In this situation, the plaintiff, on June 25, 1941, filed an amendment to his then pending original motion. In this, the plaintiff asks specifically "that the order for support payments be modified, retroactively." Irrespective of whether there is any substantial difference between the provisions of the stipulation and the order in the decree of divorce as respects the plaintiff's duty to support the children while they might be in defendant's custody, it is evident that plaintiff's major purpose is to be relieved from the obligation, not only of contributing to the support and maintenance of his children in the future, while they may be with the defendant, but also to be absolved from paying the arrearages which have accrued under the order contained in the decree of divorce. This, he would accomplish under the original motion by inducing the court to correct the judgment to conform to the stipulation of the parties, which involves the premise that the judgment does not speak the truth and implies that if it be made to do so he would owe nothing under the order for support and maintenance of the children contained in it. Quite to the contrary under the amendment, however, he assumes the validity of the order as stated in the decree, but asks that he be freed from paying the arrearages which have accumulated by reason of his default because, as he alleges: "Since the entry of the decree.... the plaintiff's income has been materially reduced." Both species of relief, he apparently conceives to be within the conception of section 5184 of the General Statutes, Revision of 1930, which provides that: "On any complaint for a divorce, the court may, at any time, make any proper order as to the custody, care and education of the children and may, at any time thereafter, annul or vary such order." Whatever the applicability of this section to the relief asked in the amendment referred to, that sought in the original motion is- not within its purview. For the cause there stated is one for the modification of a judgment on the ground of mistake or accident, which can be effectuated only by an independent action in equity. Crane vs. Loomis, 128 Conn. 697; Hoey vs. Investors' Mortgage & Guaranty Co., 118 id. 226, 230. Moreover, in assuming that it was the prerogative of the parties, in event of a decree of divorce being granted to one of them, to formulate by stipulation the provisions of the judgment with respect to the custody of their children, the relief asked for depends upon an erroneous premise. The determination of such questions is for the court, which cannot abdicate its duty to the compact of the parents. Lilley vs. Lilley, 125 Conn. 339, 343. The agreements of the latter are, of course, entitled to consideration, but the controlling influence must.be the best interests and welfare of the children with which the stipulations óf the parties may or may not be consistent. Such stipulations are "suggestions" only, which the court may properly adopt and with equal propriety ignore, according as they serve or fail to conduce to the promotion of the well being of the children who would be affected by a decree incorporating their purport. Lilley vs. Lilley, supra, p. 343. It follows that the circumstance that the provisions of the decree of divorce in the present instance did not contain such an order for their care and custody or provision for their maintenance as the parties to the action had agreed between themselves would be proper—and that quite regardless of whether such "stipulations" were brought to the attention of the court or not, at the time the judgment was entered—furnishes no basis in equity or otherwise for a modification of the judgment or the orders contained therein on the ground of accident or mistake. This conclusion also disposes of plaintiff's contention that in view of the facts stated, he is entitled to have a nunc pro tunc order entered to cause the order for support and main' tenance in the decree of divorce to conform to the stipulation. "The function of a nunc pro tunc order in general is to put upon the record and to render efficacious some finding, direc' tion or adjudication of the court made actually or inferentially at an earlier time, which by accident, mistake or oversight was not made matter of record, or to validate some proceeding actually taken but by oversight or mistake not authorized, or to prevent a failure of justice resulting, directly or indirectly from delay in court proceedings subsequently to a time when a judgment, order or decree ought to and would have been entered, save that the cause was pending under advisement." (Italics added.) Perkins vs. Perkins, 225 Mass. 392, 396, 114 N.E. 713. Plaintiff does not allege, nor do the facts reported by the referee indicate, that the court had intended at the time the decree of divorce was entered, to incorporate therein the substance or purport of the stipulation of the parties. On the contrary, the motion asserts that: "At the time of the entry of said judgment, the court was not fully informed of said stipulation. . . . " and otherwise indicates that if any mistake occurred, it was not the error of the court, but that of the parties only. " Such a situation is not one presenting a proper subject matter for the entry of an order nunc pro tunc the effect of authorizing which, were it to be indulged would be to correct the mistake of the parties—not that of the court. "It has been held that a defect in a judgment, order or decree which expressed exactly the intention of the court at the time when it was made cannot be remedied by a nunc pro tunc entry, and that an initial infirmity cannot be bolstered by the entry of a new order to take effect retrospectively as of a date anterior to that on which in fact it is entered." Perkins vs. Perkins, supra (225 Mass. p. 397). Even if it were averred that the court had erred and the facts appearing in the report sustained such an allegation, still in the absence of a finding that the judgment entered did not at the time it was rendered reflect the then present intention of the court, the basis for the entry of an order nunc pro tunc to correct the mistake would be lacking. Concerning the demand for a modification of the order in question in so for as it relates to payments for the support and maintenance of the children as contained in the amend'ment to the original motion, it can hardly be conceded that section 5184 of the General Statutes, Revision of 1930 (quoted supra) alone, confers on the court a continuing control over payments ordered by it to be made by either parent. That statute relates only to the matter of custody of minor children. However, read together with sections 5186 and 5187, it would seem that such a power is implicit in the composite provisions of these statutes and in analogy to that provision contained in section 5182 relative to alimony payable from income or earnings which reads as follows: "Any order for the payment of alimony. from income may, at any time thereafter, be set aside or altered by such court." The power to amend any of its orders providing for the support, maintenance and education of children is complementary to that of awarding custody of them in such manner as seems best adapted to protecting them. The theme of the opinion in Lyon vs. Lyon, 21 Conn. 184, 195 (which was concerned with the enforcement of a decree for alimony) is more urgently applicable to orders for the support of children of divorced parents, vis.: ". . .it was undoubtedly the intention of the legislature to invest the court, in this as in all other cases, where it has the right to render judgments, decrees and orders, with such power and authority as should be necessary to carry them into full effect. Such power is, from the nature of a judicial tribunal, necessary, and inherent in its very constitution." Morrill vs. Morrill, 83 Conn. 479, 488. Althqugh there is an obvious distinction between orders for payment of alimony out of income or earnings and orders for the support and maintenance of children (27 C.J.S. Divorce §321, p. 1218), the authorities dealing with the power of courts to modify or annul orders for the payment of alimony are much in point as respects that of a court to do likewise with, respect to orders for the support and maintenance of children of a dissolved mairriage—and áre much more numerous. In fact, in a somewhat similar situation to that presented here, the Supreme Court of Errors regarded section 5182 as controlling. Lilley vs. Lilley, p. 341 et seq. The claim advanced in the amendment to the motion (i.e. that due to changes in the plaintiff's financial status, the order for the support of the children while in defendants custody, be modified to operate retroactively and thus to excuse plaintiff from the obligation to pay accrued arrearages) must, also, be denied. The authorities are divided on the question whether courts have power even under statutes of like purport as section 5182, supra, to make such an order nullifying or modifying one previously entered for the payment of alimony from income or earnings operative retrospectively where installments have become due and remain unpaid. It is affirmed in the courts of a minority of the states of which the following cases are fairly representative: Kirkbride vs. Van Note, 275 N.Y. 244, 9 N.E. (2d) 852, 112 A.L.R. 243; Fox vs. Fox, 263 N.Y. 68, 188 N.E. 160; Karlin vs. Karlin, 280 N.Y. 32, 19 N.E. (2d) 669; Winkel vs. Winkel, 178 Md. 489, 15 Atl. (2d) 914, 921; Wenzel vs. Wenzel, 67 S.D. 537, 295 N.W. 493. But a decisive majority holds otherwise, upon the theory that such payments become vested as they become due. The view expressed in these is summarized as follows: "Statutes authorizing the alteration and modification of judgments or decrees allowing alimony have no retrospective effect, but the statutory power to modify extends only to future installments and not to alimony already accrued, unless there is clear language manifesting a contrary intent." 27 C.J.S. Divorce §276, p. 1089. To the same effect, see 17 Am. Jur. Divorce and Separation §648, p. 494; Anno. 94 A.L.R. 331. Among the more recent cases which hold to this view are: Biewend vs. Biewend, 17 Cal. (2d) 108, 109 Pac. (2d) 701, 132 A.L.R. 1264, 1267; Boyer vs. Andrews, 143 Fla. 462, 196 So. 825, 828; Banda vs. Banda, 192 Ga. 5, 14 S.E. (2d) 479, 480; Sharp vs. Sharp, 154 Kan. 175, 117 Pac. (2d) 561, 562; Cotton vs. Wright, 193 La. 520, 190 So. 665, 668, 669; State ex rel. Couplin vs. Hostetter, 344 Mo. 770, 129 S.W. (2d) 1, 5; Wassung vs. Wassung, 136 Neb. 440, 286 N.W. 340, 342; Clark vs. Clark, 139 Neb. 446, 297 N.W. 661, 663; Holcomb vs. Holcomb, 122 W. Va. 293, 8 S.E. (2d) 889, 890. A number of other cases dealing with the subject are collected in the A.L.R. Blue Book of Supplemental Decisions. Among cases holding the majority view, are several which have announced that accrued payments of alimony under an order, judgment or decree of a competent court of one state will be enforced in another under the full faith and credit clause of the United States Constitution. Examples: Biewend vs. Biewend, supra; Boyer vs. Andrews, supra; Sistare vs. Sistare, 218 U.S. 1, 30 S. Ct. 682, 54 L. ed. 905, 28 L.R.A. (n.s.) 1068. And so, also, with respect to orders for the support of a minor child. Yarborough vs. Yarborough, 290 U.S. 202, 54 S. Ct. 181, 78 L. ed. 269, 90 A.L.R. 924. In Connecticut, the question was involved in Lasprogato vs. Lasprogato, 127 Conn. 510, 513, but the decision of the trial court was reversed on other grounds "and no comment was made concerning it in the opinion. The majority view is adopted as decisive that this court is without power to modify the order in question operative retroactively so as to release plaintiff from the duty thereby imposed of paying any of the arrearages which have accrued thereunder. In his original motion the plaintiff also asks that a revision of the order in question be made, "in such manner as shall accord with the best interests and welfare of said minor children." This must be read in connection with the allegations contained in the amendment later filed in which it is asserted that "plaintiff's income has been materially reduced" since the decree containing the order for the support and maintenance of the minor children was entered. "Although there is some authority to the contrary, [in} a proceeding to modify an alimony decree.... in the absence of fraud or mistake, or want of jurisdiction, the decree cannot be altered unless it- is shown that the conditions and circumstances of the parties have changed substantially since the decree was rendered." 27 C.J.S. Divorce, §239, p. 989. Substantially the same rule applies to an order for the support, maintenance and education of children, but to the other considerations mentioned, are to be added the death of any of them or a material change in their needs, or as their welfare may be otherwise affected. Lilley vs. Lilley, 125 Conn. 339, 342. The referee's supplemental statement observes that "... . the situation as to comparative financial resources and abilities of the parties.... prevailed substantially during all of the period covered by the arrearages... . " This statement is well sustained by the subordinate facts recited in paragraphs 6, 7, 8 and 11 of the report. The important consideration, however, in the absence of facts indicative of the existence of other grounds for a prospectively operative modification of the order for support, is whether there has been a substantial change in the financial position of either parent since the decree was entered. Examination of the' facts set forth in the report discloses none. Plaintiff's remarriage does not appear tp have disadvantaged him in this respect, but if it were found that it had, such a circumstance in itself would furnish no valid reason for affording him relief. Heard vs. Heard, 116 Conn. 632, 636. If anything, the plaintiff's income has increased rather than diminished in the period referred to. Thus, plaintiff's personal income from all services in 1939 was found by the referee to have been $3,406.77, but in 1940 it was $3,978.95. Information con' cerning that for 1941 is meagre. It shows only the commis' sions earned by plaintiff from his employment up to July 1, 1941. While no final conclusion may be properly based upon this, it at least does not show a decline, but on the contrary, at the figure of $1,100 up to the date mentioned is at the rate of $2,200 per annum as compared with $1,679.94 for 1939 and $1,525.47 for 1940. Even his marriage to his present wife, which occurred on August 12, 1939, has not added any evident drain on his income. On the contrary it seems to have lightened his burdens since it appears that out of her own independent income of about $3,000 per annum she has contributed to their joint needs between $500 and $1,000 per year (mostly for household help); owns two family cars and has supplied their place of abode during the summer of 1941 in the form of a 30'foot boat, which latter fact increased the plaintiff's income for that year by the sum of $1,000 since it enabled him to rent the house which he occupies rent free for that sum during "the season." The only change in the defendant's income in 1940 was not a substantial one, but represents a decrease of $239.78, viz., the difference between a net income in 1939 of $5,992.27 and that in 1940 of $5,752.49. The report affords no basis for computing or estb mating the defendant's income for 1941. The findings are devoid of facts showing any change in the needs of the chib dren or otherwise since the decree was entered. Under the circumstances detailed, no substantial reason can be discovered which would justify amending the order for the support and maintenance of the children, as contained in the decree of divorce, especially in view of the condition that such provision is one that incorporates a precise obligation which plaintiff voluntarily undertook in a written stipulation executed by him with defendant on the eve of the hearing in the action of divorce in which defendant prevailed and but 43 days be' fore he contracted his present marriage. The effect of re' ducing the payments for support specified therein, under the conditions exposed in the referee's report, would not only not constitute a modification sanctioned by the statute (Gen. Stat. [1930] §5182) but would, in effect and in result, amount to a new and different decision on substantially the same state of material facts as obtained at the time the decree was granted containing an order which had not only the effect of a final judgment on the facts as they then were (and still are) but, also, the approval of the plaintiff. That sort of procedure is not to be countenanced. Hein vs. Hein, 127 Conn. 503, 506, 507. Otherwise, there could be no finality of judgment. Rommell vs. Walsh, 127 Conn. 272, 276, 277. But even if the facts disclosed in the report were such as to sanction a modification or even a nullification of the order for the support o'f the children, there would be no inclination to grant it while the plaintiff remains in default for failure to comply with it. 27 C.J.S. Divorce §239, p. 997. On June 28', 1941, the defendant filed a "Motion for Judgment for Contempt of Court" because of plaintiff's default in making the payments for the support of the children during the period while two of them have been in defendant's custody, viz., since June 20, 1941. It does not seem that any order to appear and show cause why he should not be adjudged in contempt was ever issued. Neither is there anything in the report to indicate that the plaintiff waived these prerequisites to the infliction of any restraint or penalty to enforce compliance with the court's order. What is clear is that plaintiff hoped to avoid performing the duty imposed upon him in the decree by being relieved of such duty and has offered nothing cognizable by the court as a valid excuse for his disobedience of the order if it survived his attack upon it. On the facts found, in the light of the conclusions reached here, he is in contempt of court. No order of commitment can be entered, however, unless and until a new motion is filed showing in terms of dollars the amount he shall be in arrears up to the time, of the filing of such motion, accompanied with an order to show cause and citation, followed by a hearing before the court at which he shall have opportunity to present any reasons which he may believe he has to influence the court not to commit him until he has purged himself. The conclusions are: (1) That the decree in so far as it relates to the custody of the children be so amended that the plaintiff shall have the care and custody of Edward and Ann from one week after the close of school to one week before the opening of school in each year and that the defendant .shall have such care and custody during the remaining time, the other parent in each instance to have reasonable right of visitation; (2) The motion for modification of the order con tained in the decree of divorce in so far as it seeks the elimination or amendment of the provisions requiring the plaintiff to make the payments specified therein for or toward the support and maintenance of each child while such child may be in the custody of the defendant, is denied; (3) The plaintiff is in contempt of court for failure to comply with the order contained in the decree of divorce requiring him to make the payments specified, for or toward the support of each child while in defendant's custody, from June 20, 1941, to the date of the last hearing before the referee, viz., November 13, 1941. Judgment accordingly.

CORNELL, J. The alternative writ was issued upon the relation of divers residents and taxpayers of the towns of Stamford, Greenwich and New Canaan, most, if not all of whom are members of the Bar practicing their profession in Stamford or its immediate environs. Among the acts which the County Commissioners are required to do (or show cause to the contrary) is that they "complete the purchase of the building known as the Masonic Temple at Stamford." Another, which must be performed jointly with the County Treasurer, is that they "issue bonds not exceeding $95,000 for such purpose, as authorised and required by law." It appears that for some time past there has been agitation among practicing members of the Bar at the southwesterly area of Fairfield County to have the Superior Court hold sessions at Stamford. To accomplish this, two conditions were required to be brought into co-existence, viz., (1) special statutory authority to the court, permitting it to do so, and (2) the furnishing of a place with proper facilities for the purpose. The county commissioners shall provide "suitable quarters . . . for holding the superior court and court of common pleas in their respective counties where there is no suitable place therefor, and the expense thereof, except where it is otherwise provided by law, shall be paid by the county." (Gen. Stat. [1930] §5425.) The first essential was satisfied by section 825d of the Supplement to the General Statutes (1937), approved May 11, 1937, and effective July 1, 1937, which permits, but does not command, the holding of Superior Court sessions at Stamford; the second can only be met, if some public or even private agency sees fit to furnish "quarters" for the use of the court, "without expense to the county." (Supp. [1937] §825d.) No such facilities have, to date, been offered by the City of Stamford or any other body, so far as appears. On June 11, 1937, "An Act Authorising Fairfield County to Issue Bonds" was approved (Connecticut Special Laws, 1937, p. 818). This (aside from provisions contained therein of no present materiality) authorised the issuance of bonds, "for the purpose of defraying the expenses and indebtedness incurred by Fairfield county in acquiring land and buildings thereon situated in Stamford for a county building and court house." (Section 2.) It, obviously, looked toward the acquisition of a county building in Stamford in which space and facilities for sittings of the Superior Court would be provided.. The Act in question limited the amount of such bonds to $95,000 and authorised the Senators and Representatives of Fairfield county at any regular or special meeting to "issue" them. Out of an apparent intention to exercise the powers thus conferred, the Senators and Representatives met on August 2, 1937 and adopted the following resolutions: "RESOLVED: That the Report of the Sub-Committee appointed by the County Meeting, held at Hartford, Connecticut, on June 2nd, 1937, recommending the purchasing, alteration and furnishing the building known as the Masonic Temple, at Stamford, at a cost not to exceed $132,500, (the cost of said land and building not to exceed $90,000) be adopted, and that the county Commissioners be authorized to provide for the financing of the same by bond issue not exceeding $95,000, as authorized under the laws of the State of Connecticut, and by a tax to be levied to provide the balance of said sum, said tax to be payable on Oct. 1st, 1937." Likewise, a tax was laid upon the inhabitants of the county and apportioned among the several towns to supply the balance of the funds over and above the proceeds of the sale of the bonds (viz., $37,500) required to pay for the necessary alterations and equipment. Some of the towns have paid this, others, claiming that it is illegal, have failed and continue to refuse to do so. It is evident that by these proceedings, the meeting of the Senators and Representatives sought not only to supply the money wherewith to provide a county building at Stamford with "quarters" for the Superior Court but, also, insofar as in its power lay, to further the purchase of the Masonic Temple (now owned by a bank) for the purpose. In fact, the total amount of the bonds authorized to be issued and sold is the exact equivalent of the price at which the 'owner of that building offered to sell it to the county in ;a letter to the County Commissioners on February 5, 1937. It must, of course, be conceded that the writ will not lie unless the respondents are under a duty imposed by law to do the acts which it is sought to compel them to perform. Comley, State's Attorney, ex rel. Rowell vs. Boyle, 115 Conn. 406, 412, and cases cited in the opinion. As concerns the demand that the County Commissioners be required "to complete the purchase of the building" in question, there is no .allegation in the alternative writ to the effect that they ever accepted the offer of the owner of that property to sell it to •the county and none that they by any official action determ ined that it should be acquired. The relators, apparently, contend that a duty to purchase the property arose out of the action of the General Assembly in its adoption of the special act referred to, supra, authorising the Senators and Repre' sentatives of the county to issue bonds, and the adoption of the resolution at the meeting of the Senators and Representatives "issuing" them, on August 2, 1937. Palpably, the special act in question had for its purpose only the providing of a means of financing the purchase of land and buildings in Stamford for a county building and court house when and if the county should determine to acquire it through its legally constituted agency. The body to which is delegated the authority of determining whether a public necessity exists for a county building at Stamford is the respondents, County Commissioners (Gen. Stat. [1930] §5065, and see, State vs. McCook, 109 Conn. 621, 628, 632). To it is, also, committed the power to pur' chase the same, "in the name and behalf of the county" (Gen. Stat. [1930] §201). Whenever there is occasion for taking land by the county "for a site for, or addition to the site of any county building," by condemnation, the proceedings out' lined in section 5072 of the General Statutes, Revision of 1930, must be brought by the County Commissioners "in the name of the county." The management, care and sale of all prop' erty belonging to the county resides with the County Com' missioners. (Gen. Stat. [1930] §201.) Under these stat' utes, clearly, the County Commissioners—not the Senators and Representatives—constitute the authority which is to decide (1) whether the public necessity requires a county building at Stamford, and if so (2) whether to acquire the Masonic Temple building to satisfy the need, and if these matters are decided affirmatively, then (3) whether to do so by purchase or condemnation. Nothing in the special act referred to purports to divest the respondent County Commissioners of any of their rights, powers and duties as outlined supra with respect to the par' ticular matter of whether a county building should be estab' lished at Stamford. On the contrary, the lack of any such intimation identifies the purpose of the act as in conformity with the role assigned to the Senators and Representatives as respects the financing of county activities only. This is detailed, in the main, in sections 202, 212 and 215 of the General Statutes, Revision of 1930 (and see, Supp. 1937, §100d). In brief, it consists.in laying taxes for the ordinary expenditures involved in the conduct of county affairs; of levying special taxes and apportioning the same among the several towns to provide funds for any special purpose not provided for at the biennial meet' ing which the County Commissioners deem necessary, and to authorise the County Commissioners to borrow money and with the Treasurer to issue negotiable notes of the county in that connection. The status of the County Commissioners as respects the acquisition of real property for county purposes in relation to the county's Senators and Representatives con' vened in meeting is not unlike that which the legislative bodies or special boards of municipalities exercising complete control over particular public activities bear to a board of finance. See Keller vs. Bridgeport, 101 Conn. 669, 680, where it said, in effect, that when specific power to acquire property is dele' gated to a body, the financial authority cannot throttle its activities by refusing or failing to appropriate the funds where' with to finance it. Neither, of course, can they interfere with the functioning of such bodies in determining whether and what land to acquire in the exercise of functions exclusively committed to them. The special act approved May 11, 1937, supra, merely confers upon the Senators and Representatives an additional power for the particular purpose of financing the purchase of any county building at Stamford, in addition to those which already resided in them, viz., to authorise the issuance of bonds. The context of the resolution adopted at the meeting of the Senators and Representatives on August 2, 1937 contains no hint of a design on the part of the Senators and Representatives to order the County Commissioners to purchase the Masonic Temple building or any building at Stamford, nor does it even make any such recommendation to the County Commissioners. If it purported to do so such action would be ultra vires. It evinces only an intention to exercise the authority conferred upon it by the special act approved May 11, 1937, which authority, as noted supra, was to enable it to issue bonds to finance the project in question, if and when the County Commissioners determined to buy or condemn the property in question. It thus appears, that neither by the special act of the General Assembly nor by the resolution of the Senators and Representatives, authorising the issuance of bonds pursuant to that act, was any legal duty imposed upon the County Commissioners "to complete the purchase of the building" in question or to acquire any site or other structure at Stamford for a building for use for any county purpose or to furnish "quarters" for sessions of the Superior Court at Stamford. Since it is the supposed existence of such a duty emanating from the sources mentioned upon which the relators rely (and no other), it follows that there is no occasion for the issuance of a peremptory writ since, of course, the court cannot order the performance of a duty by the County Commissioners, which does not exist. This conclusion is decisive, also, of the demand that the County Commissioners and the County Treasurer cause the bonds authorised by the Senators and Representatives to be issued and sold. The special act specifically provides: "Section 3. The county commissioners and the treasurer of Fairfield county shall determine the date of such bonds, the date on which the interest thereon shall be payable, the form thereof and the place of payment of the principal and interest and shall issue such bonds at such time or times and in such amounts as they shall deem necessary, and shall provide for the sale thereof." Patently, this was intended to protect the County from, the necessity of paying interest charges on outstanding bonds-prematurely issued, i.e., before the funds provided by their sale are required to be used. Insofar as the record here discloses, there is presently no need for such funds nor none in the immediate future. The time for the issuance and sale of the bonds is left by the Act to the discretion of the County Commissioners. In the present status, the court, obviously, would be without warrant in interfering with the exercise of that discretion. The considerations mentioned supra are decisive of the other alleged duties which the alternative writ would require the respondents to perform and need no discussion. The court has examined the eighteen defenses which appear m the re turn of the City of Bridgeport and the others in the return, filed by the respondents. Except as matter contained in them may be involved in what is written supra, they raise questions which under the views expressed herein are academic only. The issues are found for the respondents. The issuance: of a peremptory writ is denied.

Memorandum _ of decision on motion to disallow claim in receivership as secured creditor. MURPHY, J. Tino Suarez; has filed a claim with the receiver in this matter claiming that he is a secured creditor in the amount of $2,500 by reason of a chattel mortgage on certain machinery and equipment of the corporation. The receiver admits the indebtedness but has moved that the claim be disallowed as secured, because (1) the alleged chattel mortgage is, in reality, a conditional bill of sale or chattel lease; (2) the alleged chattel mortgage was not recorded within a reasonable time. The corporation was organized in June, 1941, with its place of business in East, Hartford. Suarez; was one of the several subscribers to the stock who transferred property, including that which is the subject matter of this claim, in payment of their stock subscriptions. The property was in possession of the corporation when it went into receivership July 31, 1942. In November, 1941, the corporation was in need of additional capital and Suarez; advanced $2,500 to it on November 14th and 21st. On November 25, 1941, the directors authorized the president to borrow not less than $2,000 nor more than $5,000 secured by assignment of accounts receivable or a chattel mortgage on the properties or both. On November 31, 1941 (no claim has been advanced that November has but 30 days) in New York City, Suarez;, with the corporation, acting by its president, executed an instrument designated by title and in the form of a conditional bill of sale or chattel lease which stated that the corporation had received of Suarez; certain goods or chattels itemized and described therein. It further stated: "which goods and chattels are to be and remain the property of said TINO SUAREZ until we shall have fully performed our part of the agreement as hereinafter set forth; we hereby agree to keep said property at our own risk and charge and pay unto said TINO SUAREZ for the use thereof the sum of $2500 on the 1st day of June 1942, until we shall have paid him the sum of $2500, as evidenced by his endorsements on the back of this agreement, when said goods and chattels shall become our property; when all claims to the same by him shall cease and be determined." The instrument was signed by Suarez; and for the corporation by its president in the presence of two witnesses and was acknowledged by both parties to it. However, it was not recorded in the town clerk's office in East Hartford until April 14, 1942. By agreement of counsel the property has been sold by the receiver and the proceeds of the sale are being held pending disposition of this matter. The first question to be determined is whether the instrument can be construed as a valid chattel mortgage. The receiver claims that the transaction should be considered as an absolute sale and relies in his argument upon sections 4697 and 4699 of the General Statutes, Revision of 1930, and Standard Acceptance Corp. vs. Connor, 127 Conn. 199, 203, and Liquid Carbonic Co. vs. Black, 102 id. 390. These sections control the execution and filing of conditional bills of sale. Section 4699 provides that all conditional sales not made in conformity to section 4697 shall be absolute sales except as between vendor, vendee and their personal representatives. But there is a distinction between these two sections and section 5092 of the General Statutes, Revision of 1930, which governs the recording of chattel mortgages and provides that they shall be recorded in the same manner as mortgages of land. There is no statute (corresponding to §4699) to provide that chattel mortgages unless filed within a definite period of time are absolute sales, void or invalid mortgages or unsecured loans. In the absence of statutory provision, it is impossible to follow the receiver's contention. It is not claimed that the instrument is a conditional bill of sale or chattel lease despite its heading and form. Title and possession of the chattels were in the corporation at the time the loan was made and the instrument was executed. Suarez never acquired title and never had possession of any of this property after the corporation was organised. The parties intended the instrument to be a chattel mortgage and relied upon the New York attorney who represented Suares to prepare a proper form. As between the parties it is a chattel mortgage. Standard Acceptance Corp. vs. Connor, supra. As to whether it is a chattel mortgage as to third parties and especially as to those who dealt with the corporation without knowledge of the true facts we have another situation. It is necessary to determine whether or not the instrument complies with the provisions of section 5092. So much of it as is applicable follows: "When any. . .printing, publishing or engraving establishment, together with the machinery, engines, implements, cases, types, cuts or plates situated and used therein. . .shall be mortgaged by a deed containing a condition of defeasance and a particular description of such personal property, executed, acknowledged and recorded as are mortgages of land, the retention by the mortgagor of the possession of such ' personal property shall not impair the title of the mortgagee." The property involved is particularly described and it is machinery, etc., in a printing and publishing establishment. The instrument was executed, acknowledged and recorded (though tardily) as are mortgages of'land. But does it contain a condition of defeasance? Webster's New International Dictionary defines defeasance: "A condition, relating to a deed or other instrument, which being performed, the deed or instrument is defeated or rendered void." 1 Jones, Chattel Mortgages and Conditional Sales (1933) § 17, says: "A technical mortgage must contain a condition .or defeasance making the instrument void upon performance of the condition.... a formal expression is not essential." And in 11 Words and Phrases (Perm. ed.) p. 539, it is said: The defeasance "must contain proper words to defeat or put an end to the deed of which it is intended to be a defeasance, as that it shall be void or of no force or effect." As set forth specifically above, the instrument provides that Suarez' claim to the property conveyed was to cease and destérrame upon payment of the $2,500. That seems to be a sufficient condition of defeasance to comply with the statute and it is accordingly held that the instrument is a chattel mortgage. The delay in recording the instrument raises another ques' tion however. Many creditors undoubtedly did business with the corporation between November 31, 1941, and April 14, 1942, in reliance upon the apparent ownership by the corpora' tion of this machinery and equipment which it was using at its place of business. The record would not have disclosed otherwise. After the instrument was recorded, persons who did business with the corporation had constructive notice, at least, of the lien which Suarez professed to have. Section 5092 states that chattel mortgages shall be recorded as are mort' gages of land. Section 5010 states: "No conveyance shall be effectual to hold any land against any other person but the grantor and his heirs, unless recorded on the records of the town in which the land lies." There is no statutory provision as to the time within which a mortgage on real property must be recorded. Mortgages, either chattel or real, to op' erate as such from the date of execution must be filed within a reasonable time. What is a reasonable time depends upon the facts in each particular case and is for the court to determine. The delay of four and oneffialf months in filing this chattel mortgage for record is not reasonable. Camp vs. Thatcher Co., 75 Conn. 165, 169; Bay City Shovels, Inc. vs. Roach, 2 Conn. Sup. 19, 21; B.C.S. Corp. vs. Abbott, 9 id. 284, 286; Air Equipment Corp. vs. Rubbercraft Corp., 79 F. (2d) 521. As the statutes require the execution and recording of chattel mortgages to be governed by the prescription covering real mortgages, so should the courts determine the law with reference to this type of mortgage. Chattel mortgages do not seem to be used to any great extent in this State, and our courts, judging by the lack of precedent, have had little occasion to pass upon them. , Our courts have considered some of these questions in their application to real mortgages, and in Second National Bank of New Haven vs. Dyer, 121 Conn. 263, at page 271, has said: "....the person who has failed to record the instrument under which he claims has thereby misled creditors into the belief that title is in the person who appears upon the record to own the property... .The person claiming the property may have a good title to it, but as against anyone who is entitled to rely upon the record he is barred from asserting that title." It would seem, therefore, that as to those creditors who did business prior to April 14, 1942, Suarei;' security would be of no avail. Recording of a chattel mortgage after the appointment of a receiver does not make it a valid mortgage as to the receiver, the representative of the creditors. In re Wilcox and Howe Co., 70 Conn. 220, 234. As there seems to be no determination in this jurisdiction of the relative rights of the mortgagee and the receiver where recording has antedated the receivership it will be necessary to look to equity. "An action in receivership is an action in equity....A court of equity does full and equal justice to all having an interest in the subject-matter." Stolman vs. Boston Furniture Co., 120 Conn. 235, 240. "A receiver succeeds to the assets of the estate subject to all outstanding equities against it." Searle vs. Crampton, 118 Conn. 42, 47. The reasoning in In re Guild, Bloomfield & Jensen, Inc., 51 F. (2d) 818, is particularly pertinent and the disposition equitable. The court said (p. 820): "....as to creditors whose claims originated prior to the filing of the contract, the sale must be deemed absolute. As 'to creditors whose claims originated subsequent to the filing of the contract, and who had a reasonable time by reference to the records to ascertain the existence of the contract, the conditional vendors are free to assert their title." The opinion in the case of In re Wiegand, 27 F. Supp. 725, deserves consideration because there it is said that under a statute providing that a mortgage on a motor vehicle shall not be valid until registered in specified manner, the delay of over a month in recording a mortgage on an automobile would not make the mortgagee's rights junior to the rights of a trustee in bankruptcy, where the mortgage was in fact registered before the trustee's rights accrued by the filing of the petition in bankruptcy. See, also, Ozark Acceptance Corp. vs. Yellow Truck & Coach Mfg. Co. (Mo. App.) 137 S.W. (2d) 965; McKeever vs. Brooks-Davis Chevrolet Co. (Tex. Civ. App.) 74 S.W. (2d) 311. An order may enter allowing the claim of Suares as a secured claim as to all creditors whose claims were contracted for, originated or were incurred after April 14, 1942; as to claims arising on or prior to April 14, 1942, it is divested of preference and security and is a general claim only.

FOSTER, J. First Avenue in West Haven runs north and south and is intersected by Main Street running east and west. First Avenue is 31J4 feet wide from curb to curb. About 3:30 a.m. on May 15, 1937 the plaintiff, an operator of a milk truck, travelling north on First Avenue, parked his truck very near to the east curb some considerable distance south of Main Street. The defendant, Chester A. Congdon, at about midnight that night had hired a convertible coupe from the defendant, John F. Lawlor, Inc., and, accompanied by his brother, John, and a friend, Moseley, drove to Savin Rock, where they patronized the various amusements there conducted. About 3:30 a.m., Congdon, with the other two young men seated beside him, was driving north on his right side of the center line of First Avenue, but near to the center line, at a speed of 25 to 30 miles per hour. As he looked ahead of him, he saw the rear lights of the milk truck, when he was one or two blocks away from it, but he thought it was moving. When he was yet some considerable distance from the milk truck, an automobile entered First Avenue from Main Street, coming from the east and proceeding south on First Avenue on its right side of the center line of the highway. The weather was damp. The pavement was damp. There was a windshield wiper on Congdon's automobile, but it was not then being operated by Congdon. The glare of the head' lights of the south bound automobile blinded Congdon for the moment. He reduced his speed a little and turned his automobile somewhat to his right, so as to be sure that he would not collide with that automobile. Just as he had passed that automobile, he observed the parked milk truck 15 or 20 feet ahead of him. He threw on his brakes and turned to his left, but did strike the milk truck in the rear. The Court feels that it should briefly comment on the con' duct of Congdon and his two associates. They were young men, Congdon being then 21 years of age, and his brother and friend 17 years of age. It is true that they were out late, but there is no evidence that they had been guilty of any reprehensible act. It is true that two hours or more be' fore the collision, they had consumed some beer, but there is not a scintilla of evidence that they were in the slightest degree intoxicated. They all came from a distance to testify in this case, and their demeanor on the witness stand was that of fine, honest, upright men, acting with no desire to shield or justify themselves or to evade responsibility or the truth. Chester Congdon must, under the law, be held to have observed not only what he did observe, but also what, in the exercise of reasonable care, he ought to have observed. He saw the milk truck ahead of him on his side of the highway, when he was a block or more away from it. He did not know whether it was moving or standing still, but he did know or should have known that, if it was moving, he was catching up with it. He knew or should have known that there was room for him to pass to the left of the truck and yet remain on the right of the center of the highway. When the lights of the automobile approaching from the opposite direction momentarily blinded him, he knew or should have known that, if he steered his automobile further to his right, he would be in the rear and in the path of the truck. It is clearly in evidence that, if Congdon had kept a straight course, when the approaching automobile momentarily blinded him, he would have collided neither with that automobile nor with the truck. When he was so momentarily blinded, had he stopped his automobile, there would have been no collision. In failing, under such circumstances, to keep straight on his course or to stop his automobile, he did not use that care that a reasonably prudent man would have used under such circumstances. It follows that the Court must find Chester A. Congdon guilty of negligence that was a proximate cause of the collision with the milk truck, and a proximate cause of the injuries received by the plaintiff,- who at the time was standing in the milk truck. The Court finds that the plaintiff was not guilty of any contributory negligence that was a proximate cause of his injuries. Since it is undisputed that Chester A. Congdon rented from the defendant, John F. Lawlor, Inc., the automobile that he was operating, it follows that John F. Lawlor, Inc., is liable to the plaintiff to the same extent as is Chester A. Congdon (Gen. Stat. [1930] §1627). The plaintiff was employed as a milk salesman and deliverer for the same employer for 1? years prior to being injured in this collision, receiving an average wage for a long time prior to the collision of $36.64 per-week. He was at that time 62 years of age and had worked steadily for over 40 years without idleness. His injuries and the prognosis of his present condition as described by Dr. Cook are in part as follows: Q. Now Doctor—are you able to tell us when it was you first saw him, Doctor? A. May 26, '37. Q. And where did you see him? A. At my office. Q. And will you please tell us what you found? A. Findings were tenderness and limitation of motion in the neck, both on rotating it and lateral bending, also pain in the back. He was tender chiefly in the left sacro-iliac region. He had slight muscle spasms in the lumbar region, a little more marked on the left. He had some tenderness in the left arm in the neighborhood of the shoulder. The x-rays of the neck were negative, so far as fracture is concerned. Q. On November 8th what were your findings? A. He was improved so far as the neck and shoulders were concerned. He still had a great deal of pain in the lower back. Q. You said he had pain in the lower back? A. Yes. Q. Whether or not, in your opinion, he was still then disabled from doing his customary work? A. I thought so. Q. Now, you saw him again on May 2nd, Doctor? A. May 2nd, 1938. Q. And what were your findings on May 2nd, 1938? A. His pain in the neck and shoulder cleared up, and his trouble is limited to the lower lumbar spine, and that includes the— the neighborhood of the 5th lumbar and sacrum, and he has some moderate pain over both sacro-iliac joints. Q. Will you please explain in non-medical language what you mean when you talk of the 5th lumbar and the sacrum? A. The 5th lumbar vertebra is the vertebra in the spine just above the sacrum, and one means by that that he still has evidence of a sprained back in the neighborhood of the 5th lumbar and the 1st sacral vertebra; lumbo-sacral sprain, with a pain around the sacrum, sacro-iliac joint. Those are the joints between the sacrum and the pelvic bones on the side, and his continuance of pain there indicates that he has some sprain of both sacro-iliac joints. Q. In other words, Doctor, from your indication of the portion affected in his back, it would embrace the middle and both sides of the back, would it not? A. In the lower back. Q. In the lower back. Is that a part of the anatomy that is material for a person who has to do work such as Mr. Beattie would have to do carrying milk? You found out what his business was, I assume? A. He was—had a milk route. Q. Yes. With this condition as of the present time prevent him from doing his work? A. I think it is still too •painful. Q. And are you able to express an opinion, Doctor, as to the duration of this condition which would incapacitate him from performing any work of this type? A. I think two years. Q. You mean by that, that for two years from now, in addition to the time that has elapsed, that it would be a total incapacity to perform his work, due to his condition? A. That is as near as I can tell. Q. Well, to the best of your ability, that is the duration of time that you would give as a prognosis of disability, is that correct? A. That is my estimate. Dr. Ematrudo makes a prognosis that the plaintiff's injuries are permanent. The defendants offered no evidence as to the plaintiff's injuries. The Court accepts the prognosis of Dr. Cook as to the probable duration of the plaintiff's inca' pacity. The plaintiff has been in bed many weeks since re' ceiving his injuries and has required the care of a nurse about 16 weeks. The plaintiff has suffered much pain and it is evident to one watching him from time to time during the-trial of the case that he still suffers pain and much disconv fort. There is no evidence of malingery nor of traumatic neurosis. His loss of wages for about 3 years is about $5,700. His expenses for medical treatment and medicines during the past year are about $700; his medical treatment in the-future will be about $150 per year. The General Ice Cream Corporation has intervened as party plaintiff. Judgment is rendered that the plaintiffs recover from the-defendants damages of $14,700. The Court will hear the plaintiffs relative to the apportion' ment of such damages in accordance with section 5231 of the-General Statutes (Revision of 1930).

ELLS, J. The complaint seeks the annulment of a New York marriage on the ground that the consent to the marriage contract was a "feigned" consent. The credible evidence does not support this claim. There was an actual consent; and it was a real consent, not a feigned one. The parties intended to get married, and in pursuance of that intent they drove across the border, secured a magistrate, and were married. The next day the girl changed her mind. It was a hasty, an ill-considered marriage, that is all there is to it. The plaintiff relies principally on the case of Davis vs. Davis, 119 Conn. 194, 199. This case does not open wide the door to the annulment of hasty marriages. The decision carefully points out (p. 203) that "A petition for the annulment of a marriage on this ground requires of the court hearing it great caution and demands clear proof." That kind of proof is wholly lacking here. In the Davis case "the plaintiff and the defendant went on an automobile ride with several young people. It was a joyous occasion and to add to the excitement the defendant dared the plaintiff to marry her. The plaintiff accepted the dare.... neither party intended at the time to enter into the marriage status." (p. 195). All of these facts are lacking in the present case. This was not "a mere jest got up in exuberance of spirits to amuse the company and themselves." (p. 202). It is the case of a foolish young couple who decided to marry in haste and did it. They did not do it on a dare, or as a jest, or to amuse someone. They proposed to get married, they intended to get married, they knew when the ceremony was being performed, that they were being actually married, and they gave their full consent. Later the girl was sorry she had done it. The law of New York governs, but there is nothing to be gained by discussing that law. It is fully covered in the Davis case. A decree is denied.

WYNNE, J. The Court is convinced that the premises where the plaintiff fell is a tenement house within the defini tion of the statute. This disposes of the question of the retaining of control of the stairway where she fell. The sole question therefore is as to whether the stairway was in good repair. The landlord owed the duty of reasonable inspection for reasonable safety. It is clear that the staircase itself had 'been put into reasonable repair but that the top landing was left untouched, although it was old and in bad repair. It is not unlikely that the rough boarding had been covered by linoleum or some similar covering at the time the stairs were renovated. This covering had been ripped off, perhaps by the vacating tenant, and the bad condition was bared at the time the plaintiff's family took possession and when the plaintiff fell. An examination of the heel of her shoe discloses that it went into a hole or space, and the sudden wrenching -accounts for her being thrown. It is not unreasonable to hold that those chargeable with keeping premises in reasonably .safe condition must have in mind the type of shoes that women wear. It is not unreasonable to hold that the landing .at the top of the stairs should be a smooth, unbroken surface. It was not. It was this condition that caused plaintiff's fall. Judgment is entered for the plaintiff to recover $750 damages.

INGLIS, J. This is an action for divorce on the ground of fraudulent contract. It appears that in November, 1936, the defendant had sexual intercourse with the plaintiff at Provi' dence, R. L, in which city the defendant then resided. In January, 1937, the defendant told the plaintiff that she had consulted a doctor and he had advised her that she was preg' nant. She claimed that the plaintiff was responsible for her condition and asked him to marry her. Thereafter on several occasions she repeated that request and made threats of crini' inal prosecution unless the plaintiff would marry her. Finally, in the fore part of February, the plaintiff asked the defendant to again consult a doctor and within a few days she reported to him that she had seen a physician and that he had advised her that she was pregnant. On the strength of that assurance, the plaintiff married the defendant on February 27, 1937. They have never lived together as husband and wife. In April, 1937, it became appar' ent to the plaintiff, at least as he thought, that his wife was not pregnant. He therefore interviewed her at her home. At that time she did not deny his claim that she was not pregnant but flew into a rage, said something to the effect that she thought that she was pregnant by another man and married the plaintiff anyhow because she needed somebody. She there' upon threw a book at the plaintiff. It cannot be found as a matter of fact, merely on the strength of that statement made under those circumstances that prior to the marriage the defendant actually believed that she was pregnant by some man other than the plaintiff. At the time she made the statement the defendant had lost her temper and obviously was talking without regard to the truth for the sake of irritating the plaintiff in return for his accusations against her. On the facts as found the plaintiff has failed to make out a case in two particulars. In the first place the evidence does, not justify a finding that the defendant knew that her repre sentations as to her pregnancy were false at the time she made them. It is entirely probable that she in good faith believed that she was pregnant. And, lacking evidence any more substantial than her reckless statement made in the heat of anger, it cannot be found that she then believed that her pregnancy was caused by someone other than the plaintiff. In the second place even though her representations were fraudulent they were not such as went to the essence of the marriage relationship. In order that a fraudulent representation should be a ground for divorce it must be something more than a representation which induced the marriage. It must be a "deception in respect to some fact whose existence or nonexistence may affect in some certain way the very essence of the marriage relation, resulting in a lawful marriage which practically operates as a fraud upon the deceived spouse; and the existence or nonexistence of the fact thus concealed or misrepresented must operate, as between the parties to the marriage, to prevent some essential purpose of marriage and work a practical destruction of that relation." Gould vs. Gould, 78 Conn. 242, 261. See, also, Lyman vs. Lyman, 90 Conn. 399, 402. The false representation of a woman that she is pregnant by the man who is thereby induced to marry her is not the representation of a fact which if it does not exist prevents some essential purpose of marriage and works a practical destruction of the relationship. The representation of such a fact when as a matter of fact the woman is actually pregnant by some one else as in the Lyman case, supra, is quite a different matter. It is one of the essentials of the marriage relationship that the husband is bound to acknowledge as his own and support such children as are born to the wife during wedlock. If by marriage he is to be put into a position where he has to support a child who is not his own that clearly goes to the essentials of the marriage relationship. But a mere representation of pregnancy where none exists does not result in any harm to the marriage relationship. The marriage relation can go on as well if the woman is not pregnant at the time of marriage as it could if she were pregnant. The claim of pregnancy may be the chief inducement to the particular marriage but the fact of lack of pregnancy does not materially affect the status of the marriage after it has been entered into. Moreover, even though the situation were that the defendant represented that the plaintiff was the one who was respon sible for her pregnancy when she believed that some other was responsible (and as stated above that cannot be found to be the situation in this case), still so long as she was not actually pregnant no harm was done to the marriage status. Previous unchastity concealed from a husband who previous to the marriage had himself had sexual intercourse with the wife does not lay a foundation for a divorce on the ground of fraudulent contract. Wetstine vs. Wetstine, 114 Conn. 7. And so long as the wife's previous incontinence concealed from the husband does not result in his being apt to be saddled with a child not his own such misrepresentation does not go to the essence of the marriage relationship. Judgment may enter denying the divorce.

INGLIS, J. This is an action to foreclose a mortgage given by the defendants to the plaintiff's decedent. The cross complaint alleges that the plaintiff's decedent on March 9, 1935, agreed verbally with the defendants that in consideration of their providing her with a tenement in the mortgaged premises for the remainder of her natural life, which they did, she would cancel the note described in the complaint and the mortgage securing the same, and prays a decree cancelling the note and mortgage. The plaintiff now demurs to the cross complaint on the ground that the verbal agreement set up therein "was in violation of the Statute of Frauds." Under our law it is, of course, well established that a mortgage conveys to the mortgagee the legal title to the property mortgaged. It conveys to him that title, however, only as security for the debt, and for most purposes the mortgagor is regarded as the sole owner of the land. The mortgage debt is the principal thing and the security follows the debt. The interest in land is transferred to the mortgagee only as security and, therefore, the mortgagee is treated as the owner of the land only for such purposes as are incidental to the enforcement of his security. McKelvey vs. Creevey, 72 Conn. 464; Pettus vs. Gault, 81 id. 415; Weed vs. Hoge, 85 id. 490. The essence of the cross complaint, therefore, is that the plaintiff's decedent for a valuable consideration agreed to cancel the indebtedness of the defendants to her. If that con tract holds, the defendants do not need to care whether the plaintiff's decedent agreed to reconvey such interest in land as she took under the mortgage. If the debt is cancelled the security lapses as a matter of course. The security follows the debt and if the debt is cancelled there is nothing left to be secured, and, in equity, the security goes back to him who gave it. It is therefore apparent that the verbal contract set up in the cross complaint was not an agreement for the conveyance of an interest in lands. It was rather an agreement to cancel a debt and not within the Statute of Frauds. There is nothing in the case of Second National Bank of New Haven vs. Dyer, 121 Conn. 263, cited by the plaintiff, which militates against that conclusion. In that case it is held that one who has taken an assignment of a mortgage but has neglected to record it is estopped to hold that assignment as against a subsequent assignee of the same mortgage for value without notice of the former assignment. The decision recog' ni?es the principle that the mortgage debt is the principal thing and that the security follows the debt, but holds simply that public policy requires that the protection of our record' ing system be given, on the theory of estoppel, to one who takes an assignment of a mortgage which mortgage appears on record to be standing in the name of the assignor. It holds that the recording statutes apply to assignments of mortgages, not that the Statute of Frauds applies. It goes no further than to hold that as one of the incidents to the ownership of the security which security is the title to land, it must be dealt with as a title to land, so far as recording transfers of it is concerned, if and only if the rights of innocent third parties are involved. It does not hold that as between the assignor and assignee the assignment of the mortgage is not good without recording. On the contrary, it recognises that as between an assignor and assignee all that is necessary for a valid assignment of the whole mortgage is the transfer of the mortgage debt. In jurisdictions other than Connecticut where the question has arisen as to whether a contract between a mortgagee and mortgagor to cancel a mortgage is within the Statute of Frauds, there would appear, superficially, to be a conflict of authority. There is in reality, however, no great conflict. The decisions on this subject are different in the different jurisdictions de' pending upon the theory of mortgages to which the various jurisdictions are respectively committed. In those jurisdic' tions which regard the mortgage, that is, the conveyance of 'the title to real estate as the principal thing, the courts natur' -ally hold that an agreement to cancel a mortgage is an agree' .ment to convey an interest in lands. But where, as in this State, it is held that the debt is the principal thing and that the conveyance of the title to real estate is simply security for the debt, it is held that an agreement to cancel is not within •the Statute of Frauds. Stevens vs. Turlington, 186 N. C. 191; 32 A.L.R. 870, Anno. p. 874; 2 Jones, Mortgages (8th ed.) §1256. The defendants claim that the contract was taken out of 'the statute by their performance of it in that they did provide the tenement for the plaintiff's decedent during the remainder •of her life. Neither part nor full performance of a contract •relating to the sale of an interest in lands will take it out of •the statute, however, unless it consists of acts which are clearly referable to some contract existing between' the parties in relation to the subject matter in dispute. Santoro vs. Mack, 108 Conn. 683, 691. The subject matter of the claimed contract here in dispute •was the mortgage. The occupation by the plaintiff's decedent of a portion of the real estate which was mortgaged did not relate to the mortgage. It is no different than would have "been the payment of a sum of money for the mortgage. If, therefore, the contract for cancellation of the mortgage had been within the statute, the claimed performance by the de' fendants was not such that it would have taken the case out of the statute. The demurrer is overruled.

INGLIS, J. The law applicable to these motions is set forth in section 302 of the Practice Book (1934) and in State vs. Pallotti, 119 Conn. 70, 73, 174 Atl. 74, 75. It is, that when an information fails to inform the accused of the "na' ture and cause of the accusation" and therefore violates his constitutional rights, a bill of particulars must be ordered and if it fails to give him sufficient information to enable him to prepare a defense such bill of particulars should be ordered. The Court may in its discretion order a bill of particulars when it deems it to be in the interest of justice to do so. The requests for more particular statements in this case are too numerous to discuss in detail. Suffice it to say that a careful study of the lengthy information makes it clear that it fully informs the accused of the nature and cause of the accusation made against them and a careful testing of it as against the various requests for more particular statements indicates that it is adequate to permit the accused to prepare their defense. Except in the case of Henry Minor the interests of justice would not be promoted by ordering the State to comply with the requests for more specific statement and in the discretion of the Court such order should not be entered. As regards Henry Minor the situation is somewhat differ' ent. All of the others are charged with certain overt acts. That charge of overt acts indicates how each of them was connected with the conspiracy. It is not alleged that Henry Minor participated in any specific overt act done in pursuance of the conspiracy. The only charge against him is the general one that he conspired with the rest to defraud the City of Waterbury by unlawful means. It would seem that justice would be promoted if he were informed as to what part the State claims he had in the alleged conspiracy. Accordingly the motions for bills of particulars of each and all of the accused except Henry Minor are denied, and the motion for bill of particulars of Henry Minor is denied except that it is ordered that the State by bill of particulars set forth what part the said Henry Minor had in the alleged conspiracy.

INGLIS, J. On September 29, 1938, the plaintiff's deced' ent, Andrew Lesick, conveyed to the defendant his real estate, located in East Haddam, worth $3,000, and personal property then located on the real property which personal property was reasonably worth upwards of $400. The sole consideration paid by the defendant for the conveyance was $300 in cash and a mortgage on the real estate for $700 payable $25 each six months with interest at four per cent per annum. At the time of the conveyance, Andrew Lesick was insane. He was capable of understanding that the effect of the transaC' tion was the conveyance of his property but, because of insan' ity, his judgment was badly impaired and he was obsessed of the insane idea that he must dispose of his property at any price obtainable. In January, 1937, Andrew Lesick had negotiated with the defendant for the sale of the same farm and at that time, with no serious intentions of buying it, the defendant had offered $1,000 which Lesick did not accept. Between that time and September, 1938, Lesick had offered the farm at various fig' ures ranging from $2,000 to $4,000. In the early part of 1937 Andrew Lesick on several occasions visited the defendant's store in Colchester and bought various trinkets which were of no value to Lesick. At that time, Felix Stankiewics, a son-in-law of Andrew Lesick, told the defendant that Lesick was not right mentally and that he, Maiofes, should not sell him anything more. At the time the defendant took the conveyance from Lesick and paid the consideration therefor, he knew that Lesick was insane and the consideration paid by him was grossly inadequate. Under such circumstances the conveyance was voidable and the plaintiff is now entitled to a reconveyance. 9 C.J. Cancellation of Instruments §37, 38, 40; 32 C.J. Insane Persons §536, 537. Since the conveyance, the defendant has sold the horse, worth $100 and the stove worth $5.00. Upon a reconveyance being made of all the rest of the real and personal property, equity will be done by the plaintiff returning to the defendant the consideration paid less the sum of $105.00. Judgment may enter setting aside the conveyance referred to in the complaint and enjoining the defendant, upon the tender' to him of $195.00 in cash and a release of the mortgage given by him and the surrender to him of the mortgage note, to make, execute and deliver to the plaintiff as administrator of the estate of Andrew Lesick a good and sufficient quit-claim deed reconveying all of the real and personal property conveyed to him by Andrew Lesick except the horse and the stove and that the plaintiff recover of the defendant his taxable costs.

CORNELL, J. This is a suit for the construction of the last will and testament of Clarence E. Whitney, late of Hart' ford, deceased, whose estate is in course of settlement in the Probate Court for the District of Hartford. The plaintiffs are the executrices named in the will, viz., Nellie Hurlburt Whitney and Dorothy Whitney Stevens, the former of whom is the testator's surviving wife and the latter, one of his daugh' ters. The named defendants are the deceased's two sons, viz., Winthrop and Lawrence Amos Whitney, and a daughter, viz., Laura Whitney Hawkinson, in addition to whom Nellie Hurl' burt Whitney and Dorothy Whitney Stevens are included in their personal, as distinguished from their representative, ca' pacities. These comprise all of the persons who have, or might claim to have, any interest under the testator's will or in, or to, his estate. The operative provisions of the will, which was drafted by the testator, personally, and executed on January 1, 1930, read as follows: "1. I desire my executors to first pay all my just debts and the proper charges against my estate. "2. All the rest and residue of my property, real and per' sonal, I desire incorporated under the Laws of the State of Connecticut, under any suitable name to be determined by my Executors, the Corporation to be so formed that there will be a reasonable number of shares of stock of one grade only, the total number to be determined by my Executors, and all the shares thereof to be of no par value. "3. I give, devise and bequeath to my wife, Nellie Hurlburt Whitney, thirty-five (35%) per cent of the total. I give, devise and bequeath to my son, Winthrop H. Whitney, five (5%) per cent of the total. I gjive and bequeath to my daughter, Dorothy Whitney Stevens, twenty (20 %) per cent of the total. I give, devise and bequeath to my daughter, Laura Whitney Hawkinson, twenty (20%) per cent of the total. I give, devise and bequeath to my son, Lawrence Amos Whitney, twenty (20%) per cent of the total." The estate is inventoried at $950,000, of which the largest single item is stock in The Whitney Manufacturing Company valued at $512,460, the remainder being in the main divided between stocks and bonds in other corporations, real estate and personal effects. The questions propounded are these: (a) Do the provisions of said paragraph 2 of said will impose a mandatory duty upon the executrices to form a corporation with the number and character of shares indicated in said paragraph? (b) If such a mandatory duty is not imposed upon the executrices, does said paragraph of said will impose such a mandatory duty on any one else? (c) If such a mandatory duty is imposed, what shall be declared to be the objects and purposes of such corporation and who shall be its directors and officers? (d) If such a mandatory duty is imposed, for how long a period shall, the corporation be continued? (e) If such a mandatory duty is imposed, can the corporation be dissolved immediately after it is formed? (f) If such mandatory duty is imposed, shall the residue be distributed among the legatees according to the percentages specified in paragraph 3 of said will? (g) If no such mandatory duty is imposed and the residue cannot be distributed among the legatees according to the percentages specified in paragraph 3 of said will, how shall said estate be distributed? (h) If such a mandatory duty is imposed can the corporation be formed at once with only a nominal capital for the purpose of making possible a distribution of income of the estate pending a transfer to the corporation of the entire residue? Of these interrogatories, (a) and (b) submit queries, the answers to which must exert much influence on the advice to be given concerning the others. To paraphrase, these are (1) whether the executrices are required to cause a corporation to be organized to which shall be transferred all of Mr. Whitney's estate which shall remain after the payment of ante mortem debts and "proper charges", and, if they are not, then (2) are the named beneficiaries under a duty to do so? These, in turn, have aspects that are twofold, viz., one which relates to the sense in which certain language is used in the will, and, in event that this is determined not to connote a mandatory direction, then whether under the provisions of the will as a whole, the duty exists. Obviously, both of these have concern with the author's testamentary intention; the second, in addition, however, includes the question of whether such a direction, if ascertained to exist, is valid. The defendants claim that there is no imperative duty imposed either upon the executrices or the beneficiaries to cause such a corporation to be organized. The hearing discloses, that the plaintiffs, executrices, are, at least, sympathetic with this contention, from which it is evident that all persons named in the will as beneficiaries, having any interest in the estate or charged with the duty of administering it, are either active proponents of, or nonresistant to that proposition. This circumstance can be permitted to have no persuasive effect upon the conclusions reached here. Brinsmade vs. Beach, 98 Conn. 322, 330; Burnham vs. Burnham, 101 id. 529, 533. The question is not what those concerned in the estate agree should have been, or should now be, done with the estate, but, only, what disposition the testator intended to make of it. Burnham vs. Burnham, supra; New Britain Trust Co. vs. Stoddard, 120 Conn. 123, 126. The obligation devolves upon the Court to give effect to the testamentary intention alone, if valid, as the instrument reveals it, or as it may be ascertained, therefrom, when considered in the light of the circumstances surrounding the testator, when he executed the will. Catto vs. Plant, 106 Conn. 236, 240; Gross vs. Hartford-Connecticut Trust Co., 100 id. 332, 335; Bartlett vs. Sears, 81 id. 34, 48. In pursuit of this quest even an invalid provision may be considered and, perforce, must be, if it constitutes the entire will. State Bank Trust Co. vs. Nolan, 103 Conn. 308, 330. Much of the argument advanced depends upon the use of the phrase "I desire" in the second paragraph of the will, with reference to the incorporation of the residue of the estate. It is contended that this is expressive of a mere wish, hope or preference in contradistinction to an imperative direction. In passing, it may be observed, that the same language is em' ployed in connection with the subject of the payment of the testator's "just debts and proper charges against" his estate. A provision of this latter character has significance of a nature hardly capable of more precatory susceptibilities. Starr vs. Watrous, 116 Conn. 448; Higinbotham vs. Manchester, 113 id. 62, 72. While this observation is not decisive of the meaning in which the same language is used in paragraph 2 of the will, neither is it to be ignored. Beardsley vs. Johnson, 105 Conn. 98. The sense in which words are used may often be determined from the immediate context in which they appear. Where, however, such considerations are not conclusive, their meaning must be discovered by considering them in the light of the general scheme of the will as evinced by the instrument as a whole. West Haven Bank Trust Co. vs. McCoy, 117 Conn. 489, 491. This done, it becomes apparent at once that unless the provisions of paragraph 2 are imperative and so, of testa' mentary, rather than of mere precatory, character, the testator engaged only in a bootless gesture in executing the instrument, for nowhere in the testament is there a bequest or devise to any person, unless it be a corporation to be organised. This conclusion is not derogated from by the circumstance that the testator employs the word "devise" in the third paragraph of the testament, for "in spite of the use of language commonly appearing in legal documents, the will . is plainly the handi' work of someone unskilled in the law." Frederick vs. Alling, 118 Conn. 602, 605; Perry vs. Bulkley, 82 id. 158, 164, 165. A construction of a will which attributes to a testator an intention to die intestate obviously poses an anomaly and, of course, offends against reason. Such would be the result if the identification of the testator's purpose were to predicate upon a determination that the second paragraph of the will contains nothing but' a hope, wish or desire that a corpora' tion be organised to take the residuary estate, with no alterna' tive or substitutionary disposition in case the persons upon whom such obligation is imposed, deign not to do so. Even in construing one or more particular provisions of a testa ment, an interpretation which will give effect to a testamentary disposition is to be preferred to one which will result in partial intestacy. Citizens & Manufacturers National Bank vs. Guilbert, 121 Conn. 520, 526, and cases cited in the opinion. Yet more compelling is the presumption that one who executes a will intends to dispose of his estate in a manner different from that in which it would, otherwise, be distributed in event of intestacy. Ansonia National Bank vs. Kunkel, 105 Conn. 744, 750; Houghton vs. Brantingham, 86 id. 630, 635. It is determined that the provision contained in paragraph 2 of the will is imperative and hence, testamentary, and must be given effect if it be valid. West Haven Bank & Trust Co. vs. McCoy, 117 Conn. 489, 494, 495. The decisive question, then, is whether the testamentary intention as it is disclosed in the will is valid or void. That depends upon (1) whether it contravenes some rule of law or (2) whether if it does not, then, though its broad outlines be definitely limned, yet it is so lacking in essential detail as to be so uncertain, as to defy effectuation. The duty to organise a corporation, if there be one, must be resolved upon the determination of these questions. The provisions of paragraphs 2 and 3 of the will when considered in the light of the fact that the testament contains no express disposition of the estate to anyone, indicates that the testamentary scheme was this: that the corporation which the testator directed be organised should have all of the residue of his estate and his named beneficiaries, in lieu of receiving any portion of his property, should have stock in such corporation each in such proportion of the entire capitalisation as the will designates in paragraph 3. There is nothing innately or inherently invalid in a testamentary gift either of personalty or realty to a corporation to be created or organised after the death of a testator. Inglis vs. Trustees of the Sailor's Snug Harbor, etc., 3 Peters 99, 115, in which it is said: "The doctrine sanctioned by the court in Porter's case, 1 Coke Rep. 24, admits the validity of a devise to a future incorporation." Burrill vs. Boardman, 43 N.Y. 254; Shipman vs. Rollins, 98 N.Y. 311; People vs. Simonson, 126 N.Y. 299, 27 N.E. 380, 381; Tilden vs. Green, 130 N.Y. 29, 28 N.E. 880, 882. This is not denied, but rather assumed, in Cruikshank vs. Chase, 113 N.Y. 337, 21 N.E. 64, and in Booth vs. Baptist Church, 126 N.Y. 215, 28 N.E. 238, both of which cases were decided on other grounds. The proposition is restated in St. John vs. Andrews Institute for Girls, 191 N.Y. 254, 267, 83 N.E. 981, 983, as follows: "There is no reason why property cannot be given to a corporation to be formed after the death of the testator and within the restricted period any more than there is why property should not be given to descendants or other persons thereafter to be born. In determining the legality of the gift there is no distinction between a natural person thereafter to be born and an artificial person thereafter to be organised." See, also, Matter of Juilliard, 238 N.Y. 499, 144 N.E. 772, where the validity of this statement is assumed. A similar view is evident in Swasey vs. American Bible Society, 57 Me. 523; Webster vs. Wiggin, 19 R.I. 73; Russell vs. Allen, 107 U.S. 163, and in First Nat. Bank & Trust Co. of Racine vs. Gold, 217 Wis. 522, 259 N.W. 260, and is apparently held in this juris' diction, at least, insofar as charitable corporations are con' cerned. Coit vs. Comstock, 51 Conn. 352; Tappans Appeal from Probate, 52 id. 412, 417; and see, Storrs Agricultural School vs. Whitney, 54 id. 342, 347. Testamentary gifts to corporations to be organised after a testator's death are (unless exempted therefrom) however, like all other bequests or devises, subject to the operation of the rule or statute (as the case may be) against perpetuities, or, as it is put in some of the authorities, the rule against the suspension of title in such manner that no person in posses' sion has the power of alienating it during a period measured by such rule or statute. This is what is meant by the "re' stricted period" mentioned in the quotation from the opinion in St. John vs. Andrews Institute for Girls, supra. And this, in turn, makes the validity of such gifts as made in a particular will dependent upon whether they offend against such statute or, as in Connecticut, the rule against perpetuities. It is, hence, generally held that if the devise or bequest be one in praesenti to a corporation, which is nonexistent, at the time of, but to be created, or organised after the death of a testator, it is void. 68 C.J. Wills §148, citing Leslie vs. Marshall, 31 Barb. (N.Y.) 560 and Literary Fund vs. Dawson, 10 Leigh (37 Va.) 147, 153; Zeisswees vs. James, 63 Pa. 465; In re Boulevard, 42 Pa. Super. 372, affd. 230 Pa. 491, 79 Atl. 716; Burrill vs. Boardman, supra; Inglis vs. Trustees of the Sailor's Snug Harbor, supra. It would seem that the same rule obtains in Connecticut. American Bible Society vs. Wetmore, 17 Conn. 181, 186, where it is said: "By the principles of the common law, no title can be created either by deed or devise, so as to vest a present legal interest in any person, natural or arti' ficial which has no legal existence." See, also, Greene vs. Dennis, 6 Conn. 293, and Lockwood vs. Weed, 2 id. 287, 292. As noted above, the construction accorded the disposition of the residue in the will here under examination is not that of a gift in praesenti but one to take effect in future, viz., when the corporation is organised, so that its validity depends upon whether the period of suspension of power of alienation of the property involved in any person is such as to offend the applicable rule of law (Inglis vs. Trustees of the Sailor's Snug Harbour, 3 Peters, 99; St. John vs. Andrews Institute for Girls, 191 N.Y. 254, 83 N.E. 981; Tilden vs. Green, 130 N.Y. 29, 28 N.E. 880; Shipman vs. Rollins, 98 N.Y. 311; Burrill vs. Boardman, 43 N.Y. 254; Coit vs. Comstock, 51 Conn. 352, 383; Storrs Agricultural School vs. Whitney, 54 id. 342, 346; and see, Tappan's Appeal from Probate, 52 id. 412, 417), or, more •consonantly with judicial expression in Connecticut, whether the beneficial interest as well as the legal title must, under the will, vest within the period limited by the rule against perpetuities. In treating of the questions thus far discussed, the authorities cited or quoted from have made no distinction between private and charitable corporations, although all of them with the ex' ception of In re Boulevard, supra, were of the last mentioned species. However, granted that a private corporation has, or acquires, power to take by devise, no reason can be discerned for any differentiation between it and a charitable corporation in this respect. No such distinction, apparently, was sug' gested or recognised, in Palmer vs. Neely, 162 Ga. 767, 135 S. E. 90, where (citing inter alia, Burrill vs. Boardman, supra, and St. John vs. Andrews Institute for Girls, 'supra) a devise and bequest to executors to be by them transferred to a cor' poration to be organised was held valid under the Georgia Code. Since these cases were decided, however, either by statute, as in some jurisdictions, or, as here and in some others, by judicial improvisation, the statute, or rule, against perpetuities is no longer applicable to testamentary gifts for charitable purposes (Pierce vs. Phelps, 75 Conn. 83, 86, 87; Brooks Bank, & Trust Co. vs. Beers, 120 id. 477, 481; City National Bank vs. Bridgeport, 109 id. 529, 543, 544), but, of course, continues in effect insofar as private dispositions of property are con' cerned, and so would ordinarily apply to a gift to a private cor' poration to be organized. However, the testamentary direction here under consideration is that the designated corporation be organized "under the laws of the State of Connecticut."' Whether this language be sufficiently inclusive to comprehend the chartering of a corporation by special act of the General Assembly, there is no occasion to inquire. It aptly describes one to be brought into being under section 3395 of chapter 191 of the General Statutes, Revision of 1930, in accordance with which "Any three or more persons may associate to form a corporation for the transaction of any lawful business." Of such a situation, although it was dicta, the opinion in People vs. Simonson, 126 N.Y. 299, 308, 27 N.E. 380, 382, says: "If the bequest were to a corporation to be created by the trustees of the will and which could be at once incorporated and organized under the general law, a new and interest' ing question would be presented.. It might very well be said in such a case, that as it would be the duty of the trustees of the will to act at once, in procuring the incorporation, the delay in the incorporation would be but a mere incident to a certain result." Yet more liberal was the view taken in Coit vs. Comstock, 51 Conn. 352, 382, 383, where the bequest, though for a charitable use, was to a testator's executors to hold, manage and receive the income thereof, until an act of incorporation could be obtained from the General Assembly of the State of Connecticut, with such power as might be necessary to carry into full effect, the object of the bequest. The opinion (p. 383), noting that "the testator intended that the property should remain in the hands of his executors but a short period of time," and that the act of incorporation "was to be procured as soon as it could be done", concluded "that a reasonable time only for the act to be obtained was contem' plated by the testator." The disposition was held not void as. contravening the then' statute against perpetuities, although there could, of course, be no certainty that the General Assembly would pass the special act required. See Belfield vs. Booth, 63 Conn. 299, 307. The right to incorporate under the general statute laws of this State is absolute, provided only that the purpose be a law' ful one, and the statutory requirements be complied with. The procedure outlined is devoid of even propensity toward delay and need wait upon the discretion of no person, official or otherwise. It was the testator's indubitable intention that a certificate of incorporation be filed and the organization of a corporation caused to be effected as soon as the time limited for presentation of ante mortem claims had expired and such debts, taxes and all other administration expenses and charges had been paid. No reason, legal or otherwise, appears to prevent the carrying out of this direction, at least, within a reasonable time following the noted events, even though that be but a matter of days. Beyond doubt, this must certainly occur within a period of 21 years and such delay, if any, as might be or has been encountered cannot be said to relate to the uncertainty of the event, but only to circumstances arising from other sources. It is the conclusion, therefore, that the provisions of paragraph 2 of the will which (as determined here impose an imperative duty upon the executors) do not contravene the rule against perpetuities but, are on the contrary, notwithstanding and insofar as the same is concerned, valid. The foregoing, it is believed, attributes to the will the benefit of every reasonable consideration and presumption which may incline to uphold its validity, insofar as the testator's general intention is concerned and the manner in, and the instrumentality by, which the testator sought to effectuate his purpose. Notwithstanding all of which, however, it must be determined that the testamentary plan fails, not because of any vice, inherent within the scheme, itself, but because, from lack of specific direction it is impossible to effectuate it. This conclusion is reached because there is nowhere in the will any description of the function that the contemplated corporation is to play with respect to the estate bequeathed and devised to it, whether arising from a designation of the specific powers that the corporation when organized is to be clothed with or, even, as derived from a deposit of authority with the executors or any other person to determine what such powers shall be. It is thus distinguishable, for example, from the will examined in Palmer vs. Neely, 162 Ga. 767, 136 S.E. 90, and the other cases cited herein. All that, in reality, is provided, is that a corporation shall be caused to become into being and the residue of the estate shall be transferred to it but what such corporation shall do with the property after it receives it is a subject as to which there is not only no direction but, also, nothing from which, by inference or otherwise such direction can be ascertained. It is the duty of Courts to construe wills, not to make them. Obviously, this forfends against mere speculation as to what a testator intended and the transmutation of conjecture into attributed intention by the alchemy of judicial interpretation. This, of course, connotes that a testator, at least, say something concerning essential elements of his selected method of disposing of his property, from which, without drawing upon mere imagination, the Court may be enabled to reach a conclusion concerning the reasonable probabilities. While it may be presumed that the testator intended that the corporation should be empowered to act for a lawful purpose (in contradistinction, e.g., to an unlawful one) yet the diversity of lawful purposes for which a corporation may be organised is such that in the absence of some clue to the testator's design, the Court is impotent to aid in effectuating what must otherwise appear to be his secret intention. Reference to a memorandum dictated by the testator to his secretary on the same day that he executed the will shows that even Mr. Whitney, himself, had no clear conception of what it was he was to accomplish by causing the residue of his estate to become vested in a corporation to be organised after his death beyond "keeping everything together."' A note of tentativeness is discernible in his statement: ". . . the writer is working on a program with Mr. Ralph O. Wells, Attorney, concerning his personal will which he hopes before long may be more perfect, reasonable or sensible than any of the forms of will which the writer has used up to this date. . . . After such a will is executed he will hope through additional study once or twice a year, perhaps, to make further improvements and execute new or later.wills to cover such improvements." There is uncertainty, too, evident in the discourse in the memorandum upon the difficulty of the problem facing the testator and his explanation therein that the will here under examination was intended to fulfill the function of coping with the "emergency" which would be caused by his sudden demise before the testament which he expected would eventuate from his attorney's efforts and his own could be executed, especially as supplemented "by certain advice or recommendations to Mrs. Whitney." No communication concerning the disposition of his estate was ever made by Mr. Whitney to his wife following the execution of the will and had it been, its subject matter could not be given testamentary effect. Bryan vs. Bigelow, 77 Conn. 604, 615; Birge vs. Nucomb, 93 id. 69, 72, 73. Even though the memorandum in question, which was unsigned and unattested, contained statements which might explain the purpose for which the corporation was to be formed and the powers which the testator wished it to have and exercise, still it could be of no aid in detecting the testamentary intention, in the presence of the complete void in which that subject is left in the will. Sadler vs. Sadler, 107 Conn. 409, 414; Strong vs. Strong, 105 id. 76, 80. A gift to a corporation not possessing powers appropriate to the effectuation of an expressed testamentary intention is void. Tappan's Appeal from Probate, 52 Conn. 412, 417. Mr. Whitney's will contains neither a description of the manner in which he would have his estate dealt with (from which an inference might be drawn as concerns the authority which he conceived the contemplated corporation should possess) nor any intimation to his executrices or others as to what powers they should insert in a certificate of incorporation under the general statutes or otherwise. As the authorities which such a corporation should have must needs exert a definite influence upon the management, future career and ultimate destination of the estate, the uncertainty is fatal to the validity of the provision and, as the will is drawn, to the testament in its entirety. In this connection, discussion is purposely omitted with reference to the claim that the provision is void for uncertainty on the theory that the will provides for, or its provisions are analogous to, an attempt to create a trust. A devise or bequest to take effect in the future upon the creation or organization of a corporation does not constitute a trust. Pierce vs. Phelps, 75 Conn. 83, 85; Connecticut Junior Republic Assoc., Inc. vs. Litchfield, 119 id. 106, 114. The uncertainty exists here in the failure to identify the person, artificial to be sure, to which the disposition is made and the assurance that that beneficiary whose personality could only be recognized by the powers and authorities bestowed upon it, can never have being. Hughes vs. Daly, 49 Conn. 34. In the absence of any other express disposition of the testator's estate or any alternative or substitutionary bequest or devise in event that the gift of the residue to the contemplated corporation should be found invalid, such residue becomes and is to be administered and distributed as intestate estate. Home Trust Co. vs. Beard, 116 Conn. 396, 398; Nel son vs. Pomeroy, 64 id. 257, 261, 262; Sumner vs. Westcott, 86 id. 217, 222; Bridgeport Trust Co. vs. Parker, 97 id. 245, 250. For the reasons noted the questions propounded are answered and the executrices are advised as follows: Questions (a) and (b)—No; question (f)—No; question (g) —as intestate estate. In view of the conclusions reached, no answers are required to be or can be given to questions (c), (d), (e) and (h). When this cause was presented, the Court suggested that the questions involved should be reserved for the advice of the Supreme Court of Errors. In the absence of authority directly in point in this jurisdiction on the pivotal one of these, it is still felt that the opinion of the court of review should be had and should be so invoked by appeal taken from this decision by the executrices. See Belfield vs. Booth, 63 Conn. 299, 309.

MOLLOY, J. The plaintiff is a federal corporation organized and existing by virtue of an act of the Congress of the United States. The defendant is a public service corporation specially organized and incorporated under the laws of the State of Connecticut, having an office and principal place of business in the Town of Manchester, Connecticut, and engaged in the business of distributing and selling water for purposes of home use. The plaintiff has a mortgage on premises known as 9 Strickland Street in the Town of Manchester, Connecticut. This mortgage provided that in case of default, the plaintiff, that is, The Home Owners' Loan Corporation, could enter into and take possession of the premises and collect the rents thereof. The mortgagors being in default, on April 8, 1938 the plaintiff took judgment in foreclosure proceedings in the Superior Court for Hartford County, the law date being set for June 20, 1938. On March 17, 1938 the plaintiff made peaceable entry upon the premises with the permission of the mortgagors and took possession thereof. At the same time the tenant attorned to the plaintiff and agreed to pay rent to the plaintiff from April 1, 1938 and in accordance with said attornment agreement has paid rent to it. On April 14, 1938 the defendant informed the plaintiff that the mortgagors being indebted to the defendant for water service in the amount of $31.78, which sum represented an arrearage for water furnished prior to the entry of the plaintiff upon said premises, the water service to said premises would be discontinued unless the plaintiff paid the delinquent water charges. Immediately upon receipt of this notice, the plaintiff notified the defendant by letter that it would assume all water charges accruing against the premises from the date it went into possession thereof. The defendant has a monopoly upon the water supply to that portion of the town of Manchester in which the premises in the control and possession of the plaintiff are situated. These premises and the tenants thereof are therefore absolutely dependent upon the defendant for a water supply. On April 23, 1938 a temporary injunction pendente lite was granted the plaintiff restraining the defendant from discontinuing or cutting off the supply of water to the premises now in the possession of the plaintiff, and the defendant now seeks to have this injunction dissolved. The question is: May this water company shut off the supply of water to the mortgagee in possession for failure of the owner of the equity of redemption to pay the arrears of water charges incurred prior to the plaintiff taking possession? It is the contention of the plaintiff that no such right exists in the defendant corporation inasmuch as it has no lien rights against the property to which it furnishes water; that it can •pursue its right in personam against the mortgagors and this right should not be converted to one in rem against the property. The defendant concedes it has no lien rights against the property, and that, therefore, it has but two remedies with which to enforce payment of its water rental. It can either bring suit against the person liable for the water, or it can shut off the water until the arrearage is paid. The first claim is undisputed, of course. The last claimed right is what is in question here. The defendant bases this claim of right on section 13 of the defendant's charter. It provides: "The occupant of any house, tenement, or building, who shall take the water of said company, shall be liable for the price of the rent of the same, and the agents of said company, intrusted with the superintendence of the works, may at all reasonable times enter the premises so supplied, to examine the pipes and fixtures, and to prevent unnecessary waste." Now, the defendant's reasoning in this regard is that the word "occupant" in the above quoted section must be construed to mean ownership, otherwise the defendant would not be able to collect its water rents; that it has no contractual relation with any occupant or tenant of a building unless the occupant is also the owner; that it has always construed the word "occupant" to mean owner; and that the plaintiff is not the owner of the premises in question. It is clear, therefore, that the defendant's position centers around the fact that the plaintiff is not the owner of the premises, title to the same still standing in the names of the mortgagors until the law day which has been set for June 20, 1938. Now, on the matter of peaceable entry into possession, the plaintiff cites the case of Hartford Realization Co. vs. Travelers Insurance Co., 117 Conn. 218. In that case the court held that a mortgagee is entitled to possession and has an immediate right of entry which he may assert without bringing an action for possession, and that such a mortgagee in possession is entitled to collect rents due subsequent to said entry, being only liable on foreclosure or redemption of the premises to account for them. In other words, that the mortgagee in possession is in a sense a receiver of rents. The defendant admits this, but contends that the difference between that case and the instant one is that the plaintiff has already brought its action to get possession, and has had a law day fixed. I cannot see that it makes any difference, because the plaintiff, under the mortgage terms, was given this right of entry in case of default. What difference does it make that the plaintiff has made entry upon the premises and taken possession peaceably after action brought to get possession? It could do so before action was brought if done peaceably. In the instant case the plaintiff has made entry and taken possession of the premises peaceably with the permission of the mortgagors, and in addition it has received an attornment agreement from the tenant, a right given it by the express terms of the mortgage contract. Now there are two decisions, the reasoning of which, seem to me to be determinative of the question in this case. These cases are Title Guarantee & Trust Co. vs. 457 Schenectady Ave., Inc., 260 N. Y. 119, and Vanderbilt vs. Hackensack Water Co., 110 N. J. Eq. 636. The first action involved a foreclosure proceeding wherein a receiver of rents had been appointed, and the water company sought to cut off the supply of water unless the receiver paid the past due bill of the owner of the premises. The Court reasoned that the mortgage was secured not only by a lien upon the real estate but also by a right to take the rents during the time necessary to foreclose the lien; and that whatever charges and expenses were to be necessarily incurred in running and keeping up the premises during the receiver's possession were to be deducted from the rents, but that he was under no duty or obligation to pay the debts of the owner which were not liens or charges upon the property. The Court further argued that to force him to pay the water company's claim by shutting off the water supply would in effect give a lien on the property for the amount due which the company did not have; and that water charges are not like public records, whereby a mortgagee may know what bill for water the mortgagor is running up; and that the use of water is necessary to the discharge of the duty which the Court imposed upon the receiver. In the latter case the complainants were holders of a first mortgage and were in peaceful possession of the mortgaged premises by virtue of a provision in the mortgage which authorised them upon default to enter into possession and collect rents thereof. The defendant was a water company similar to the defendant in the instant action. The complainants immediately upon entering into possession gave notice to the defendant that thereafter they would be responsible for payment of charges for water service; whereupon the defendant refused to furnish water unless the complainants should forthwith pay arrears of water charges for water theretofore furnished to the owner of the equity of redemption and used in the mortgaged premises. Upon the defendant's threat to cut off the water supply in default of payment, an injunction pendente lite was granted. There was no statute, rule or regulation under which the defendant was entitled to a lien on premises for arrears for water supplied. The Court said (p. 637): "In that situation defendant may not refuse to supply water to a new owner or tenant of the premises unless defendant's charges in arrear for water supplied to a previous owner or tenant are paid, and this court may grant relief against the consequence of such a refusal. . . . When the mortgagee takes possession after default, such possession is adverse to and independent of the mortgagor's right to possession, for the mortgagee thus puts an end to those rights of the mortgagor which are incident to or arise out of possession, and the mortgagee cannot be ousted thereafter by the mortgagor until the mortgage be paid. . . . Meanwhile the mortgagee has all the rights that actual possession confers, subject, of course, to his liability to credit the profits to the mortgage debt." Since the mortgagees took possession in their own right and since the water company has no right of lien on land for water supplied, it is not justified in refusing to furnish water unless the new occupant on the premises pays a water debt owing by a former occupant. In the latter case the Court further said (p. 638): "I see no more reason why complainants should be compelled to discharge defendant's unpaid bill, than that they should be required to pay for coal, janitor's services, or any other commodity furnished to and consumed by the mortgagor while he was in possession." It is admitted that the defendant company has no lien rights against the property supplied by its water service. The plaintiff is in possession in its own right and is an independent occupant. So long as the plaintiff pays for water consumed subsequent to its occupancy, it is entitled to be supplied with this necessity. In view of the authorities cited and the reasoning thereof, it seems to me that the plaintiff is right in its contention that the water company may not shut off the supply of water to a mortgagee in possession for failure of the owner of the equity of redemption to pay arrears of water charges incurred prior to the mortgagee taking possession. To do otherwise would give the defendant a club which the Legislature never in' tended that it should have. The motion to dissolve the injunction pendente lite is denied.

MELLITZ, J. The plaintiff seeks to recover a sum alleged to be due for rent. After receiving notice from the plaintiff that the rent would be increased from $150 to $200 a month, the defendant continued to occupy the premises for a period of four months. The defendant's claim that he was in possession under a lease for one year at a rent of $150 per month is not sustained by the evidence, and it is found that at the time the defendant received the notice of an increase in the rent he was a tenant from month to month, paying a monthly rental of $150. The question presented is whether the defendant is liable at the rate of $200 a month for the period during which he continued in possession after receiving the notice of increase. The defendant occupied the premises for more than ten years, during much of the time under a series of one year leases, the rental never exceeding $150 a month. When the plaintiff acquired dominion over the property, the premises were in a poor state of repair, and the defendant, after an understanding with the prior owner, had undertaken an obligation to make substantial repairs with a view to his continuance in possession, under an arrangement which he believed to be a lease for one year. When the plaintiff notified the defendant of an increase in the rent, the defendant refused to pay the increase and asserted that his tenancy was under a lease for a year. An obligation to pay rent arises either as a result of a con tract or a reservation in a conveyance. 2 Tiffany, Landlord and Tenant (1910) §211. The contract giving rise to the obligation need not be express and may be one which is implied from the circumstances, but unless a contract can be found to exist, the liability of the tenant is in assumpsit for use and occupation. "A contract for a different rent has been held to arise when the landlord notifies the tenant that if he holds over he must pay an increased rent, and the tenant makes no reply and does hold over, this being regarded as an acceptance of the landlord's proposition. If, however, the tenant protests against such increase, there can, by the cases generally, be no implica' tion of assent by him, and no greater rent can be demanded than before. Occasional decisions and dicta to the effect that even if the tenant objects to the payment of the increased rent, he will be liable therefor so long as he retains possession, are objectionable, as in effect imputing to the tenant an intention which he has expressly disclaimed, and as enabling the landlord to fix a penalty of any amount for a wrongful holding over by the tenant." 2 Tiffany, Landlord and Tenant (1910) §210. The rule as stated by Tiffany has received the approval of our Supreme Court in Margolis vs. Wise, 91 Conn. 152, although the question of the amount of the rent was there not involved. Before the expiration of the term, the landlord notified the tenant that if he continued in occupancy the rent would be at the rate of $100 a month and that he must vacate on 60 days' notice. (P. 156): "Had Margolis (the tenant) accepted this proposition expressly, or continued in occupancy without further communication with his landlord, and paid the rent specified, his conduct would have constituted an acceptance, and in either case his continued occupancy would have been upon the terms of his landlord's proposal." (Citing Tiffany.) After a new proposal by the landlord (p. 157), "the occupancy and payment of rent by Margolis thereafter without dissent, constituted an acceptance upon his part of the terms of occupancy submitted to him by his landlord." While the courts in other jurisdictions are not in accord on the question, many decisions sustain the view expressed by Tiffany. Arnold Realty Co. vs. Toole Co., 46 R.I. 204; Atkinson vs. Cole, 16 Colo. 83; Abrams vs. Sherwin, 269 Pa. St. 31; Colyear vs. Tobriner, 7 Cal. (2d) 735; 2 Thompson, Real Property (1924), §1607. In an extensive annotation in 109 A.L.R. 197, appears the following comment (p. 198), which supports the same view: "The doctrine, as recognized in some of the cases, that a tenant who holds over after being notified of an increase in rent for the succeeding term, or rent period, becomes liable to pay the increase demanded, whether he actually assents thereto or not, and notwithstanding his objections and protests, is founded on the idea that a landlord is absolutely entitled to fix the terms upon which his property may be held by another. The contrary view is founded upon the idea that the law should not imply a promise contrary to obvious reality, and that justice is done by permitting the landlord to recover the reasonable value of the tenant's unauthorized occupancy, where he does not desire, or may not be permitted, to hold the tenant for a new term, or period, at the formerly established rent. It seems clear that the latter doctrine is the safer one, as applied to all cases, since under the former a court will sometimes find itself called upon to enforce demands which are wholly exorbitant and ruinous to the tenant. Moreover, the parties may have become involved in a bona fide dispute as to the tenant's right of further occupancy, so that, under the rule giving absolute effect to notices of rent changes (where the tenant has in fact no further right of occupancy), the tenant is in effect subjected to an unfair penalty upon its being adjudged that he was unjustified in continuing in possession." Hence, where there is no express assent and a tenant continues to occupy premises after being notified by the landlord of an increase in rent, and the circumstances are such as to warrant an implication that the tenant has accepted the landlord's proposal, the liability of the tenant is to pay rent at the increased rate. But where there is no express assent to the increase and the circumstances are such as not to warrant an implied acceptance by the tenant of the landlord's proposal, the liability of the tenant is for payment of the reasonable value of the premises, which may be greater than the rate theretofore paid by the tenant, if such be found to be the fact. Here not only did the defendant refuse to pay the increase demanded by the plaintiff and communicate his refusal to the plaintiff, but the defendant's entire course of conduct negatives any implication that he assented to the terms of the plaintiff's proposal. Upon the evidence presented it is found that the value of the premises was not in excess of $150 per month; that the defendant has at all times been willing to pay this sum; and that the plaintiff, by his conduct,- waived a legal tender thereof. Tracy vs. O'Neill, 103 Conn. 693, 699. Judgment may enter for the plaintiff to recover $300 dam' ages, without costs, and for the defendant to recover costs.

Memorandum of decision on appeal from action of Com' pensation Commissioner. O'SULLIVAN, J. A claim for workmen's compensation having been denied, the plaintiff appealed to this court, and has alleged error on the Commissioner's part in his rulings on the motion to correct the finding, and in his conclusion that the injury for which compensation was sought did not arise out of and in the course of the plaintiff's employment. The finding, as corrected by the Commissioner and this court, warrants the following running account of the events leading up to this litigation: The defendant is engaged in the business of selling a commodity known as "Good Humors", which are made of ice cream attached to sticks. These are sold by young men whom it employs, stationed at various points along the highways. The "Good Humors" are housed in containers and the young salesmen are known as container boys. On June 20, 1941, the plaintiff, a lad of 18 years, entered the defendant's employ as a container boy and was instructed in the technique of the company's style of salesmanship. The plaintiff was assigned to a location on White Street, Danbury, to which, by the terms of his employment, he was taken during the morning in one of the defendant's trucks operated by Murray Zeidenberg. In addition to this task, Zeidenberg was required to park here and there along a certain route to sell "Good Humors" carried in the truck. He was also required to call at the plaintiff's station each evening at six o'clock to replenish, if necessary, the latter's supply of "Good Humors." Then, at 11 o'clock he would pick up the plaintiff, collect such ice cream as was unsold and whatever receipts the plaintiff had in his possession from the sales made during the day and evening, and then the two would return to New Haven. The period of the plaintiff's employment commenced when he left the defendant's plant in New Haven and ended upon his return. On the morning of June 30, 1941, with Zeidenberg at the wheel of the truck and the plaintiff as a passenger, they started for Danbury. While on the way, the plaintiff asked and received permission to drive the truck and, while so engaged, he ran into the rear of another vehicle headed in the same direction, as a result of which a bone in his arm was fractured and he was rendered incapacitated until October 18, 1941. On May 1, 1941, he had obtained a driver's license and when he hád first sought employment with the defendant, he had asked for a truck-driving job but an official of the company told him he was too young and inexperienced for such work. He understood why the company would not employ him as a driver and he knew he was violating instructions when hp operated the truck on the day in question. Further corrections of the finding cannot be made as the additions sought to be added are not admitted or undisputed facts, and the eliminations involve matters on which there was direct evidence or which may be justified by reasonable inferences. During the course of oral argument, counsel for the defendant conceded that the plaintiff was not guilty of serious or wilful misconduct, nor did the Commissioner determine the case on any such theory. The simple and basic question involved is this: While the plaintiff was driving the truck, can the injury he sustained be legally' held to have arisen out of and in the course of his employment? A distinction must always be drawn between the doing, in á reckless or negligent manner, of - a thing a workman is employed to do, and the doing of a thing altogether outside of and unconnected with his employment. A peril arising from performing the work he is required to do by the terms of his employment, even though recklessly or negligently done, is rightly a risk incident to his employment, but not so in the other case. It is not disobedience to instructions that precludes recovery, but the fact that what he was doing was not part of, or incidental to, what he was hired to do. It makes no difference, it seems to me, whether the plaintiff was or was not instructed not to drive the truck, in the absence of a finding that no custom had arisen of which the employer was or of which it should have been aware whereby container boys were, on various occasions, permitted to drive the trucks in which they were being transported. The plaintiff's job was to sell "Good Humors." As incidental thereto was the transportation to Danbury and if, while Zeidenberg was driving, the plaintiff sustained an injury from a collision, it would be •deemed one arising out of and in the course of his employment. Johnson vs. Wiese, 125 Conn. 238; Swanson vs. Latham, 92 id. 87; Flanagan vs. Webster & Webster, 107 id. 502; Sala vs. American Sumatra Tobacco Co., 93 id. 82. But, under the circumstances disclosed by the finding, the plaintiff, in operating the truck, placed himself as much beyond the sphere of his employment as he would have done, had he driven off the premises of his employer without waiting for Zeidenberg at all. The risk he met when the collision occurred was one of his own creation and was caused by his doing something he was not employed to perform. It was not, therefore, a risk that arose out of his employment. The authorities support this position. Anno. 23 A.L.R. 1161; 33 id. 1335; 119 id. 1409. Where a braketaan and fireman on a locomotive exchanged positions, and in a collision the former was killed, compensation was denied. Utah Copper Co. vs. Industrial Commission, 62 Utah 33, 217 Pac. 1105. The same conclusion was reached where one was employed to shovel gravel and, to accommodate the driver of the team, exchanged work with him for a trip during which he was injured. Modoc County vs. Industrial Accident Commission, 32 Cal. App. 548, 163 Pac. 685. A similar result occurred where the plaintiff, employed to bear off heading from a heading machine, was permitted by a foreman to exchange jobs with one who had been hired to clean floors in the defendant's plant. Bullard vs. Cullman Heading Co., 220 Ala. 143, 124 So. 200. To a like effect is Whelan vs. Moore, 43 Ir.L.T. 205, 2 B.W.C.C. (N.S.) 114, where a man employed by the owner of a canal boat as driver exchanged places with an employee engaged to steer and was .subsequently drowned. Instances, undoubtedly, may occur where a workman sustains a compensable injury while furthering his employer's interest but in the performance of an act not within the precise sphere of his employment. Such is to be found in Hartz vs. Hartford Faience Co., 90 Conn. 539. Each case, of course, has its own set of circumstances and each requires its own solution. For example, had the truck, while under the operation of Zeidenberg, sustained a blowout of one of its tires and had the plaintiff been injured while assisting in mounting a new tire, compensation ought to follow even though the plaintiff's work did not specifically cover the possibility of assisting in replacing tires. On the other extreme, had the means of transportation to Danbury been by plane, and while in the air, had Zeidenberg, the pilot, "wished to doze off and requested the plaintiff, who knew nothing about flying, to take over the controls, it would be a courageous barrister, it seems to me, who would seek compensation for the injuries which inevitably would happen. ' Then again, the situation might be vitally different had Zeidenberg suddenly become ill, as the plaintiff unsuccessfully endeavored to establish, and had he asked the plaintiff to drive in his stead. Emergencies, whether of greater or less significance, alter cases, and whenever compensation has been allowed in somewhat analogous cases, there will usually be found the element of 'an emergency, even though its degree is at times well-nigh insignificant. But the instant' case, furnishes no such persuasive facts. Here was a lad with a month-old operator's license burning a hole in his pocket and he sought the opportunity, as all youngsters do, to make use of it by operating a truck. This presents a picture much different from that found in the Hartz case. The appeal is dismissed.

Memorandum of decision in action for relief from tax laid on real property. McLAUGHLIN, J. This is an action based upon section 1201 of the General Statutes, Revision of 1930, as amended, for relief from the amount of taxes based on assessments for the year 1938, said assessments made by the assessors of the Town, of West Haven against various and several parcels of land owned by the plaintiff, located in the Town of West Haven, in and near the locality known as Aimes Point, or the "Oyster River" section so-called. The plaintiff instituted three separate actions, for the years 1938, 1939 and 1940, and each case involved 31 separate tracts or parcels of land. Counsel for the plaintiff and defendant agreed that, the three cases would be tried jointly and the evidence presented in behalf of either side relating to expert testimony as to values on September 1, 1938, the assessing date for the first of the three years involved, would be equally applicable for the purpose of assisting the court in determining values as of September 1, 1939, and September 1, 1940. The plaintiff in the instant case claims the amount of the assessments for the year 1938 was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statute for determining the value of these properties. In relation to the various tracts of land involved, only one has buildings thereon owned by the plaintiff, while 13 pieces have a rental return but the rental yields are not of much value in assisting the court in applying the method of "capitalization of gross income" or "capitalization of stabilized net income." The method used by the litigants in the case at bar in presenting evidence to sustain their respective claims was chiefly by opinions of qualified real estate experts who were familiar with the market value of land and buildings in that particular vicinity. The plaintiff's properties are located near the West Haven shore front on Long Island Sound, a distance of approximately seven miles from the center of the City of New Haven and about three miles from the center of the Town of West Haven. The defendant town uses the so-called lot and block system on street frontages and acreage valuation on other parcels which do not border on highways. The plaintiff offered evidence of present true and actual values through three real estate experts as well as exercising his right to appear as a witness concerning the values of the land, while the defendant offered evidence through two real estate experts, and it may be said that the town assessors' valuation of the plaintiff's properties far exceeded the values arrived at by any appraiser who testified in the case on either side, and, hence it was necessary for the court, aided by these expert opinions and weighing them in the light of all circumstances in evidence bearing upon values and the elements going to establish them, in reaching the ultimate conclusion of present true and actual value of each separate parcel as of September 1, 1938. On a view of the premises it appears that this section does not offer substantial inducement or attraction for either residential or business development, but is rather confined to seasonal characteristics of a limited nature. The various properties involved in this action will be discussed in the order of their respective number, in accordance with the procedure adopted by counsel at the time of the trial. Parcel No. 1: This piece is known as No. 54 Ocean Avenue, and has a frontage of 336 feet by a depth of 150 feet, plus an angular piece of nothing over 100 feet by 150 feet. This is.a corner property on Ocean Avenue and Jones Hill Road and is zoned partially for business and partially residential. There is a rock boulder above street level some ten feet which tapers to land. in the rear. The construction of homes on this tract would be expensive on that portion where the solid rock is situated, and the utility for residential or business purposes, considering all the evidence presented thereon, is not an impressive factor. I find the true and actual value of this land to be $7,920. Parcel No. 2: This piece of property, known as the abandoned trolley right of way, is 30 feet wide, and extends for a distance of 2,500 feet with land of the plaintiff bordering it on both sides. There is no dispute on the true and actual value of this tract, which I find to be $415. Parcel No. .3: This piece is known as No. 51 Jones Hill Road and has a frontage of 160 feet on Jones Hill Road by a depth of 150 feet, plus an angular piece nothing over 65 feet by 150 feet. This is an overlapping of this parcel of land with tract No. 1. I find the true and actual value of this parcel to be $4,303. Parcel No. 4: This piece is known as No. 125 Jones' Hill Road and has a frontage on Jones Hill Road of 80 feet, with a depth of 125 feet, plus an angular piece of nothing over 70 feet by 150 feet. I find the true and actual value of this parcel to be'$1,280. Parcel No. 5: This piece is known as No. 50 Nashawena Avenue, and has a frontage of 188 feet by a depth of 100 feet. The street directly in front of this property is not hardened or improved, although the avenue is top-dressed or hardened directly south of this tract. I find the true and actual value of this parcel to be $2,256. Parcel No. 6: This piece is known as No. 140 Ocean Avenue and has a frontage of 416 feet on Ocean Avenue, with a depth of 150 feet. It has a brook running through a portion of it and is lower than the surface of the adjacent highway. At times there is a flow back from high tides which causes wetness and dampness. I find the. true and actual value of this tract to be $4,992. Parcel No. 7: This piece is known as No. 163 Ocean Avenue and has a frontage on Ocean Avenue of 150 feet,. by a depth of 150 feet located on the northwest corner of Ocean Avenue and Anawan Avenue. I find the true and actual value of this tract to be $2,740. Parcel No. 8: This piece is known as No. 178 Ocean Avenue and has a frontage of 100 feet on Ocean Avenue and a depth of 150 feet. This tract may be utilized for residential purposes. I find the .true and actual value of this tract to be $2,000. Parcel No. 9: This piece is known as No. 49 Nashawena Avenue and has a frontage of 150 feet by a depth of 150 feet. A brook runs through this parcel which tapers off from the street grade. I find the true and actual value of this tract to be $600. Parcel No. 9A: This piece is known as No. 43 Nashawena Avenue and has a frontage of approximately 50 feet by 150 feet depth. I find the true and actual value of this tract to be $400. Parcel No. 11: This piece is known as Ño. 83 Anawan Avenue and has a frontage of 10 feet by a depth of 150 feet. It may be used as a right of way to reach a tract containing cottages bordering on the abandoned trolley right of way. I find the true and actual value of this parcel of land to be $120. Parcel No. 12: This piece is known as No. 40 Anawan Avenue and has a frontage of 27 feet on Anawan Avenue, by a depth of 150 feet. It may be used as a small building lot or a right of way. I find the true and actual value of this parcel to be $324. Parcel No. 13: This piece is known as 44 Anawan Avenue .and has a frontage of 53 feet on Anawan Avenue by a depth of 150 feet. It has a house constructed on it owned by the lessee. I find the true and actual value of this parcel of land to be $636. Parcel No. 14: This piece is known as 50 Anawan Avenue .and has a frontage of 370 feet on Anawan Avenue by a depth of 150 feet. This is a desirable tract of land for building purposes. I find the true and actual value of this tract to be $4,400. Parcel No. 15: This piece is known as 15 Anawan Avenue and has a frontage of 30 feet on Anawan Avenue by a depth of 100 feet. Due to its proximity to the shore, it has a higher value than land further inland. I find the true and actual value of this tract to be $900. Parcel No. 16: This piece is known as 17 Anawan Avenue and has a frontage of 30 feet on Anawan Avenue by a depth of 100 feet. It has a dwelling on it owned by the lessee. It is similar in character to piece No. 15. I find the true and actual value of this tract to be $900. Parcel No. 17: This piece is known as 19 Anawan Avenue, and has a frontage of 30 feet on Anawan Avenue by a depth of 100 feet and is similar in character to parcels No. 16 and No. 18, which are adjacent thereto. I find the true and actual value of this tract to be $900. Parcel No. 18: This piece is known as 21 Anawan Avenue and has a frontage of 30 feet on Anawan Avenue by a depth oPlOO feet. It has a dwelling on it which is rented. This lot is similar to Nos. 15, 16 and 17 and worth the same in value. I find the true and actual value of this tract of land to be $900. Parcel No. 19: This piece is known as 180 Ocean Avenue and has a frontage of 50 feet on Ocean Avenue, by a'depth of 150 feet. This tract also has a dwelling on it, which is rented, and owned by the lessee. I find the true and actual' value of this parcel of land to be $1,000. Parcel No. 20: This piece is known as the rear of 54 Ocean Avenue and contains 4.3 acres. • This is the tract on which the Aimes Homestead is located. This acreage is worth about $500 per acre. I find the true and actual value of this tract to be $2,150. Parcel No. 20A: This item is the Aimes Homestead dwelling house, of wooden, frame construction, somewhat Gothic style of architecture, which has been standing some 75 years. Its utility and attractiveness have diminished considerably in recent years, and it does not offer much for either summer or year-around occupancy to the prospective purchaser. I find the true and actual value of this dwelling to be $4,750. Parcel No. 20B: This is a shed, adjoining the dwelling house premises. I find the same 'to have a true and actual value of $100. Parcel No. 20C: This item is known as a barn, located on the dwelling house premises. I find this barn to have a true and actual value of $250. Parcel No. 20D: This item is known as a milk house or smoke house. I find this to have a true and actual value of $100. Parcel No. 21: This piece is known as the rear of 88 Jones Hill Road, on the west side thereof, and contains 3.11 acres of salt meadow. It was the unanimous opinion of the real estate experts that this tract was worth on September 1, 1938, the sum of $155. I find the true and actual value of this tract of land to be $155. Parcel No. 22: This piece is known as the rear of 140 Ocean Avenue and contains 4.74 acres. It is in greater part tillable and could be made available for building purposes, with some limitations of access and egress, with a swale or partial swamp detracting from its availability. I find the true and actual value to be $300 per acre and the whole tract to be worth $1,422. Parcel No. 23: This piece is known as the rear of 75 Jones Hill Road and contains 19.31 acres. Some of this acreage is available for development with limited approach, while a portion of the tract is damp and low, due to the old trolley right of way forming a barrier. This tract on an over-all acreage basis has a value of $300 per acre, and I find the true and actual value of the entire tract to be $5,793. Parcel No. 24: This piece is known as 75 Jones Hill Road, consisting of a piece (24A), 147 feet fronting on Jones Hill Road, by a depth of 150 feet; another piece (24B), 380 feet by a depth of 150 feet; and a third parcel (24C), 60 feet over nothing by 150 feet. A portion of this land is lower than the adjacent highway which it borders, while another portion of it is wet and swampy. I find the true and actual value of this entire tract to be $4,696. Parcel No. 25: This piece is known as 145 Ocean Avenue and has a frontage of 25 feet on Ocean Avenue by a depth of 138 feet. It has a dwelling on it, which is rented and owned by the lessee. It fronts on the water front and has a frontage value of $30 per front foot. I find the true and actual value of this tract of land to be $750. Parcel No. 26: This piece is known as Ocean Avenue and has a frontage of 25 feet on Ocean Avenue by a depth of 136 feet. It adjoins Parcel No. 25 and is of the same character. I find the true and actual value to be $750. Parcel No. 27: This piece is known as 147 Ocean Avenue and has a frontage on Ocean Avenue of 25 feet and a frontage on the water front of 27 feet, by a depth of 146 feet. It has a dwelling on it, which is rented, and it is of the same character of land as parcels Nos. 25 and 26. I find the true and actual value of this tract to be $750. Parcel No. 28: This tract has been referred to as the so-called "Boat Lot." There was no evidence presented by either side which would indicate that such a parcel was in existence or that it was owned by the plaintiff. It appears that this item came into the 1938 list as prepared by the defendant but does not appear in the 1939 or 1940 list. In the course of the trial both parties litigant "agreed that this tract of land was referred to by mistake and the plaintiff should not have been assessed for it as he does 'not own such a parcel of land. Parcel No. 29: This piece is known as 149 Ocean Avenue and has a frontage on Ocean Avenue of 25 feet, and a frontage on the water front of 28 feet, by a depth of 156 feet. It had at one time a dwelling on it, which was later moved from this land because of a sewer manhole" which was located in the center of this land and which has affected its utility and desirability. I find the true and actual value of this land to be $625. - Parcel No. 30: This parcel is known as 185 Ocean Avenue and it 'borders on the water front. It has a frontage on Ocean Avenue of 25 feet, as well as on the water front. There is a dwelling located on it, which is rented and owned by the lessee, and because of its depth and utility, especially in conjunction with parcel No. 31, I find the true and actual value to be $875. Parcel No. 31: This piece is known as 183 Ocean Avenue and adjoins Parcel No. 30, it being of the same character and availability. I find the true and actual value of this tract to be $875. The assessments for the- years 1938, 1939 and 1940, as appears in plaintiff's exhibits 1, 2 and 3, are, in the opinion of the court, manifestly excessive, and the plaintiff ought to be granted the relief he prays for. For the purpose of taxation, any valuation of any taxable property except its present true and actual valuation is illegal. Underwood Typewriter Co. vs. Hartford, 99 Conn. 329, 336. In view of all the evidence in the case it is found that the assessed valuation of the plaintiff's properties for the year 1938 was arrived at by the defendants' board of assessors in a manifest disregard of the statutory provisions concerning such valuations, and in excess of their true and actual value as indicated in this memorandum Whereupon it is adjudged that the assessors' valuations and assessments of the plaintiff's properties for the year 1938 be and the same are modified by reducing said assessments to the amounts above set forth, and that the plaintiff recover of the defendant his costs. This memorandum applies with equal force to the defend' ants, The West Haven School District and The West Shore Fire District as well as to the Town of West Haven, as these defendants all acted pursuant to said assessment lists in levy' ing their respective taxes. Judgment may enter for the plaintiff.

McEVOY, J. The evidence shows that the defendant operator of the car was a careful driver who, under ordinary circumstances, would not be involved in a collision of this kind. It further shows that he was driving under particularly difficult circumstances on the evening when his car collided with the bicycle on which the minor plaintiff was riding. Under ordinary circumstances the collision would not have occurred. A careful consideration of all the evidence induces the conclusion that the proximate cause of the collision was due to the failure of the defendant to have windshield wipers which would clean not only the left side of the windshield where the defendant operator's vision would naturally be most relied upon, but also upon the right-hand side of the windshield. The plaintiff approached the defendant's car from the defendant's right. The whole testimony would indicate that these vehicles arrived at this intersection at approximately the same time but that, just about as the defendant operator made the turn he accelerated the speed of the car, and due to the absence of the windshield wiper on the right side of the windshield, the defendant did not and, in fact, had very little opportunity to observe the presence of the minor plaintiff upon his bicycle. Under all of the circumstances the issues are found for the plaintiff and, by virtue of the signed stipulation, also to include the damages sustained by the plaintiff's father. In fairness to the defendant operator and the defendant owner it should be said, as a matter of record, that the evidence discloses that, after the unfortunate occurrence, these two people did everything possible to alleviate the injury occasioned to the minor plaintiff. There is no basis for the claim that they either attempted to avoid responsibility or that they in any way failed to cooperate or to render the best possible assistance under the circumstances. Judgment may be rendered in favor of the plaintiff to recover of the defendants $250 and his costs.

CORNELL, J. The defendant is the named beneficiary in a contract of life insurance made by the plaintiff with her son, William C. Wegner, evidenced by a policy in the sum of $1,000 issued to the latter on June 5, 1933. This contains the following provision: "This policy may be reinstated at any time within five years after any default, upon presentation at the Home Office of evidence of insurability satisfactory to the company and payment of overdue premiums with six per cent interest thereon from their due date. Any indebtedness to the company at date of default must be paid or reinstated with interest thereon in accordance with the loan provisions of the policy." The complaint alleges that the "policy lapsed because of nonpayment of a premium which became due on June 5, 1935" and that on July 18, 1935, the insured applied in writ' ing for its reinstatement under the provision quoted and in so doing, "represented that he had not had any illness, diseases or bodily injuries and had not consulted or been treated by any physician . . . during the preceding two years and further certified that his answers were full, complete and true and agreed that the plaintiff, believing them to be true should rely and act thereon." It is then recited that, in fact, the insured was, at the time he made these representations, suffer' ing from chronic nephritis and that within a period of two years next prior thereto he had consulted, and had been treated by, a physician. By reason of these allegations, joined with others appropriate thereto, the plaintiff, together with other relief, demands that the policy be declared void and that the same be ordered to be delivered up for cancellation. A special defense filed by the defendant predicates on a provision of the policy which reads as follows: "The policy and the application therefor, copy of which is attached hereto, constitute the entire contract. All statements made by the insured shall, in the absence of fraud, be deemed representa' tions and not warranties and no statement shall avoid the poh icy or be used in defense of a claim under it, unless it is con' tained in the written application and a copy of the application is endorsed upon or attached to the policy when issued----" 'To this the plaintiff demurs, assigning as a reason therefor: '"that the provision of the policy set forth in paragraph 6 does not refer to fraud in an application for reinstatement of a lapsed policy." The proposition of law underlying this con tention is that the provision in question has reference only to the application for the original issuance of the policy and so is without effect upon a statement made by an insured in the presentation of evidence of insurability when seeking reinstatement of a lapsed policy. Although there is no allegation in either the complaint or answer that the policy was not delivered in connection with the application for reinstatement to the insurer's home office and then redelivered to the insured with the application for reinstatement attached thereto, both parties assume in their briefs that the application for reinstatement has never been annexed to the policy—a fact which is evidenced by the copy of the latter made "a part of the record as Exhibit 'A'." The same assumption will, hence, be made here. The question presented was decided upon a policy issued by the plaintiff here, containing provisions of substantially, if not identically the same purport as referred to, supra. It was held "that the requirement that the application be endorsed upon or attached to the policy was clearly not intended to apply to an application for reinstatement." DeValpine vs. New York Life Ins. Co., —Mo. App.—, 105 S.W. (2d) 977. This is the only case which the court's own research has discovered or to which counsel have called attention, decided in a jurisdiction where, as in Connecticut, the provision in question or one of comparable intendment was not required by statute, but where, nevertheless, it was contained in the policy. In several states, however, where statutory provisions demand that the same, or similar, provisions be inserted in actuality or by force of such statutes, the same conclusion has been reached. New York Life Ins. Co. vs. Buchberg, 249 Mich. 317, 228 N.W. 770, 67 A.L.R. 1483 National Life & Accident Ins. Co. vs. Nagel, 260 Mich. 635, 245 N.W. 540; Linder vs. Metropolitan Life Ins. Co., 148 Tenn. 236, 255 S.W. 43; Duncan vs. Penn. Mut. Life Ins. Co., —Tenn. App.—, 65 S.W. (2d) 882; Holden vs. Metropolitan Life Ins. Co., 188 Mass. 212, 74 N.E. 337. A number of cases which are cited as holding contrariwise are collected in a note in 67 A.L.R. 1489, at pp. 1491, 1492. On examination, it appears that these are based upon constructions of local statutes differing in phraseology from those referred to supra and from each other. They derogate, little, if at all, from the conclusions reached in the authorities quoted or cited supra concerning the provision under instant consideration. The weight of authority in point, as well as what seems to be the better reasoning underlying it, is decisive of the contention advanced in the demurrer and sustains it. The questions of whether the incontestable clause is applicable to the situation disclosed by the pleadings at the current juncture and its effect, if any, upon the matter here involved, if it is applicable, is not within the purview of the demurrer, which is one directed to a single special defense only. Demurrer sustained.

O'SULLIVAN, J. In the first count, the complaint alleges a cause of action to foreclose a mortgage executed on February 2, 1933, by the defendants, Robert M. Alderman and his wife, Florence. The property is now owned by the defendant Butler, who acquired title in 1937 through the foreclosing of a second mortgage given to him by the Aldermans. In addition to the mortgage, the Aldermans had secured their loan through the hypothecation of 13 shares of the capital stock of the plaintiff corporation which had been issued to them when the loan was made. The note which they executed provided for monthly payments amounting to $26.15, of which $13.00 was applicable to the purchase price of the shares of stock, while the balance of $13.15 was to be credited to the principal and interest arising under the mortgage loan. For many months the Aldermans complied with their agreement but eventually fell into default and the plaintiff has now brought this action to foreclose its mortgage. The present value of the shares of stock, which is treated as a cash item, amounts to $636.61. As the association is thoroughly satisfied to look to the mortgage for the payment of its debt, it wishes to pay the value 'of the shares of stock to the rightful owner, but as both the Aldermans and Butler make claim to the fund, a second count was set forth in the complaint asking for an interlocutory decree of interpleader, which relief was granted. Thereafter, the defendants filed their statements of claim. The Aldermans have answered that filed by Butler but the latter has failed to answer the Alderman statement. Each defendant, after an interlocutory decree of interpleader, occupies the position of a plaintiff and must not only state his own claim but also answer that of the other. Howland Brothers vs. Barre Savings Bank, 87 Vt. 181, 88 Atl. 732; Israel vs. Baker, 101 N. J. Eq. 699, 139 Atl. 526. In order to keep the record straight, it is suggested that counsel for Butler file a denial before July 5, .1938, as the order on this memorandum will be held in abeyance until that date. The problem which the parties have endeavored to iron out is simply-this: where a mortgagee holds personal security in addition to his mortgage, may a subsequent mortgagee insist that the amount of the loan be reduced by the application to it of the value of the hypothecated collateral, in order to reduce the amount of the debt to be paid by such subsequent mortgagee, in the event he wishes to redeem. The mechanics of a bill in the nature of an interpleader is a cumbersome, if not an improper method, to solve the problem which the parties have endeavored to.present. Under the old English chancery practice, a bill of interpleader could be maintained only by a stakeholder having no interest in the disposition of the fund,- nor any substantial right of his own to be litigated, and who had incurred no independent liability by his own act or contract to either of those having conflicting claims to it. These rules were somewhat relaxed in the system of equity -pleading formerly followed in this State. Century Indemnity Company vs. Kofsky, 115 Conn. 193. And it was intimated in Consociated Presbyterian Society vs. Staples, 23 Conn. 544, at page 555, that it might conduce to the ends of justice to relax them still further, and do away with the distinction be•tween bills of interpleader and bills in the nature of bills of interpleader. Union Trust Company vs. Stamford Trust Company, 72 Conn. 86. Since 1893 there has been in force a statute which provides that "Whenever any person shall have, or shall be alleged to have, any money or other property in his possession which is claimed by two or more persons, either he, or any of the persons claiming the same, may bring a complaint in equity, in the nature of a bill of interpleader, to any court which by law has equitable jurisdiction of the parties and amount in controversy, making all persons parties who claim to be entitled to or interested in such money or other property. Such court shall hear and determine all questions which may arise in the case...." Gen. Stat. (1930) §5911. The statute is a remedial one and is to be favorably construed. Union Trust Company vs. Stamford Trust Company, supra. It recognizes a remedy not only in favor of a stakeholder, within the narrow compass of the original bill of interpleader, but in favor of any party interested in property of any description in the nature of a fund held by one party and which he cannot safely turn over to its apparent owner by reason of conflicting claims made by others. Brown vs. Clark, 80 Conn. 419. But even under the breadth of this principle it is impossible, it seems to the Court, to solve, through the procedure adopted the problem the parties have raised, for obviously the fund in the hands of the plaintiff does not and never did belong to Butler. To hold that he is the rightful owner of the fund and that he should receive it from the plaintiff would be to ignore the facts entirely. His interest arises not through ownership with the attendant right to its possession, but solely through an equitable principle that he seeks to invoke. At best, the most he can hope for is a judgment that while the Aldermans are the owners of the fund, the plaintiff should be required to apply it to the mortgage indebtedness. However, this appears to be an end beyond the scope of the procedure of inter-pleader. The means Butler might pursue in attempting to reach his objective might well be through the filing of an appropriate pleading to the foreclosure count in the complaint, but he may not attain his end by the means of interpleader. If judgment is entered on the phase of the case now before the Court, there may arise complications, the unravelling of which may be all out of proportion to the need. For if final judgment should not enter, it would require the plaintiff to pay to the Aldermans the fund in question, and yet that might leave the plaintiff liable if the Court, passing upon an issue created by an appropriate pleading to the count of foreclosure, should take the law to support Butler's claim. If the problem could have been solved by interpleader, this Court would hold that the Butler claim is untenable. While there is support for his position that the fund should be applied to the mortgage indebtedness, Connecticut law appears to be against it. People's Savings Bank and Building Association vs. Collins, 27 Conn. 142. Contra, Red Bank Mutual Building and Loan Assn. vs. Patterson, 27 N. J. Eq. 223; Phillipsburg Mutual Loan and Building Assn. vs. Hawk, Id. 355. It appears wiser then, to revoke the interlocutory decree, so that the parties may, if they so desire, have their real problem solved through more orderly procedure. Accordingly, on July 5, 1938, an order may enter vacating the interlocutory decree of interpleader.

PICKETT, J. This is a petition under section 2029 of the General Statutes, Revision of 1930, to review the action of a justice of the peace in administering the poor debtor's oath. The sole question of importance arises out of the fact that the notice required by statute was signed by a justice of the peace, whereas the petitioner insists that only a commissioner of the Superior Court is now authorised to sign mesne process. It is settled that: "The authority of the justice to administer the poor debtor's oath is derived from the statute . . . and is to be exercised only after all statutory requirements are complied with, otherwise he has no jurisdiction to act." Anderson vs. Dewey, 91 Conn. 510, 513. Among the provisions of section 2027 of the General Statutes, Revision of 1930, is the requirement that written notice shall be issued, served by a proper officer and returned, calling upon the adverse party to appear and show cause why the oath should not be administered. The statute reads in part: "Any prisoner on civil process may apply to a justice of the peace to take the oath provided for poor debtors and shall cause notice signed by a justice of the peace to be given," etc. In this case defendant complied literally with the statute. Plaintiff contends that section 1618c and 1653c of the Cumulative Supplement to the General Statutes (1935) have, by necessary implication, amended section 2027 of the General Statutes, Revision of 1930, taking away the power of the justice to sign such a notice and vesting that power in a commissioner of the Superior Court. Section 1618c of the Cumulative Supplement to the General Statutes (1935) defines the powers of a justice of the peace but omits the last clause, which formerly appeared in section 5299 to the General Statutes, Revision of 1930, which read: "He may also sign and issue civil process returnable before any court." Section 1653c of the Cumulative Supplement to the General Statutes (1935) provides that "Mesne process in civil actions shall be a writ of summons or attachment . . . and, if returnable before a justice of the peace, shall be signed by a commissioner of the superior court . . The effect of these two statutes was to take from the justice of the peace authority to sign mesne civil process. In section 1653c the Legislature specifically mentioned sections 5505, 5619 and 5946 of the General Statutes, Revision of 1930, and repealed so much of them as was inconsistent therewith, but made no mention of section 5867 (Bastardy Act) or section 5971 (Summary Process Act), both of which contained provisions authorising a justice of the peace to sign such process. At a later session of the Legislature by sections 849d and 85 Id of the Supplement to the General Statutes (1937), the Legislature definitely eliminated the words "justice of the peace" and thereby settled the confusion which existed as to whether the justice still had power to sign bastardy warrants and summary processes. No specific change, however, was made in section 2027 of the General Statutes, Revision of 1930, relating to the poor debtor's oath. If, therefore, said section 2027 is amended by section 1653c of the Cumulative Supplement to the General Statutes (1935), it is by implication only. In Anderson vs. Dewey, 91 Conn. 510, at page 512, the Supreme Court holds: "The mere administration of the oath is a ministeral act, but the inquiry into the matter, and the determination that 'no sufficient reason is shown' why the oath should not be administered, are exercises of the judicial function. The justice of the peace is a judicial officer." This holding seemingly overrules Betts vs. Dimon, 3 Conn. 107. We have then a proceeding setting in motion a judicial inquiry and determination in which the debtor is the moving party, the judgment creditor the "adverse party", in which a process in writing to be formally served and returned is required and a hearing is requisite. Civil process under our procedure consists of a writ, i.e., notice or summons and a complaint, i.e., statement of the cause of action and remedy sought. Judge Swift writes in 1 Swift's Digest, p. 589: "Of process. This is the means of giving the defendant notice, or of compelling him to appear in court and is called original, or mesne process, as distinguished from final process, or execution; and is by summons and attachment . A summons is merely giving notice to the defendant to appear at some court described in the writ . . ." I conclude that this whole proceeding, involving as it does a judicial determination definitely affecting rights and remedies and being, as it is, an original process, falls in the category of mesne process as defined in section 1653c of the Cumulative Supplement to the General Statutes (1935) and that the justice of the peace was without authority to sign the same and, therefore, never acquired jurisdiction of the matter and could not lawfully administer the oath.

BALDWIN, J. The plaintiff alleges a breach of contract by the defendant as a physician and surgeon under which contract the defendant was to perform an operation on the plaintiff; that the operation was performed on the 25th day of June, 1936; and that in performing the operation the defendant did not use that skill which was due and proper and as a result the plaintiff was caused suffering and pain and loss of time and expense. The complaint is dated September 21, 1937 and was served October 1, 1937. Defendant has set up as a special defense an allegation that the action was not brought within one year from the date of the act or omission complained of. To this special defense the defendant has demurred, alleging that it is not essential to the cause of action that it be brought within one year from the date of the act or omission complained of. Defendant in pleading this special defense relies upon the provisions of section 1680c of the Cumulative Supplement to the General Statutes (1935), which are as follows: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, hospital or sanatorium, shall be brought but within one year from the date of the act or omission complained of." This section is an amendment of sections 6015 and 6016 of the General Statutes, Revision of 1930, and it went into effect July 1, 1935. The injury here complained of occurred June 25, 1936. This action was brought fifteen months after the alleged breach. Plaintiff claims that section 1683c of the Cumulative Supplement must be considered in connection with section 1680c and that because of the provisions of section 1683 c, section 1680c applies only to actions founded on tort and excludes all other actions and therefore section 1680c would apply to a malpractice action only when founded on tort and would not apply when such action is founded on contract. Section 1683c is as follows: "Applicability of Provisions. The provisions of section 1677c, 1678c, 1680c, 1681c and 1682c shall apply to any cause of action founded upon a tort upon which action shall not have been brought on or before July 1, 1935, except that it shall not reduce the time within which, prior to July 1, 1935, action might have been brought . upon any such cause of action to a period less than one year from July 1, 1935." The claim which plaintiff makes under section 1683c is based upon a misconception of the effect of this statute. Section 1683c relates to a cause of action founded on a tort, which action had not been brought on or before July 1, 1935, the date when the section went into effect, and the effect of this section was only to extend the period for one year from that date in which such action under any of the sections of the statute therein referred to could be brought. It should be noted that sections 1678c, 1681c and 1682c, referred to in section 1683c, repealed respectively, sections 6011, 6016 and 6026 of the General Statutes, Revision of 1930, while the other sections referred to in section 1683c were amendatory of certain other sections of the General Statutes and also a combination of some of those sections. The sections repealed and some of those combined provided periods in excess of one year in which the actions related to in such sec' tions could be bought. Having limited in section 1680c the time to one year in which such tort actions could be brought which previously had the benefit of a longer time, the General Assembly provided by section 1683c that such existing rights of action which might have been brought prior to July 1, 1935, should have the benefit of a full year from the date the law went into effect in which such action might be brought. Section 1680c is broad, clear and inclusive. Under this .section an action of malpractice, whether founded on tort or contract, may prevail only if brought within one year from the date of the act or omission complained of. The case of Hickey vs. Slattery, 103 Conn. 716, has been •referred to. This action was against a physician in two counts, the first founded on tort and the second on contract. The Court there held that the first count was under section 6015 and expired within one year but that the second count was not under that section and did not expire within one year. 'The Court has, however, since that decision, reexamined its opinion, and it says in Tuohey vs. Martinjak, 119 Conn. 500, at page 507, referring to the Hickey case: "The situation presented by the case now before us has led us to examine the correctness of this construction. We are necessarily led to the conclusion that §6015 of the General Statutes includes all actions to recover for personal injuries whether due to negligence or not; and in so far as the Hickey case holds to the contrary it must be overruled." This decision coincides in point of time closely with the adoption of section 1680c. The demurrer is overruled.

Memorandum of decision in action between husband and wife involving ownership of real property. O'SULLIVAN, J. This action involves a controversy between husband and wife as to the ownership of a parcel of land, title to which now stands in the latter's name. It appears that prior to 1938, Mr. and Mrs. Tuchmann were living in New York City where his business interests were centered. He had, at one time, been engaged in the distribution of cosmetics; later, he entered the construction field, and finally became interested in various real estate ventures. To implement these latter, he made use of a group of corporations in which he was the dominant figure. His experience was fairly broad. He was no stranger to lawsuits, having participated in several, a circumstance which may account for his courtroom poise, a characteristic that always seems to develop in the litigious. Tuchmann treated his wife with greater lavishness than his economic position warranted. In this respect, he was improvident, a trait of which Mrs. Tuchmann was only too well aware. To her, it was a matter of deep concern, for she longed for a greater degree of security for her son and herself than was possible by a continuation of the unsettled mode of life adopted by her husband. She finally persuaded Tuchmann that it would be for the best interest of the family to move to the country and there to establish a home. This resulted in their searching for a place to buy. Eventually they discovered one in Brookfield that struck their fancy. It was owned by a Mrs. Brink and they opened up negotiations for its purchase. During the fall of 1937, an agreement was reached and a written contract of sale was drawn up and executed by Mrs. Brink, on the one hand, and Mrs. Tuchmann on the other. Of its terms, the only ones necessary to refer to are these: the property was to be sold for $14,000, $1,000 in a down payment, $3,000 when title passed, and the balance to be absorbed by Mrs. Tuchmann s note for $10,000, secured by a purchase-money mortgage payable in quarterly installments of $500 each, and bearing interest on the unpaid balances at the rate of 5%% per annum. The $1,000 was paid to Mrs. Brink when the contract was signed. Title was to pass during January, 1938, but the date was advanced to March 10th, in as much as Tuchmann happened to be short of funds at the time. On the latter date, he had borrowed $3,000 from his wife's aunt and this he used to pay the balance of the required cash. Mrs. Brink then delivered her warranty deed in which Mrs. Tuchmann was named as grantee, who, in turn, delivered her note for $10,000 to Mrs. Brink and secured it by a purchase-money mortgage on the property. Shortly after this, Mr. and Mrs. Tuchmann moved to Brook- field and maintained the place as their home. Tuchmann began to putter about the property, making various repairs and improvements, the most costly of which was a chicken coop. He also paid certain taxes and fire insurance premiums. When the first quarterly installment on the mortgage note fell due, Tuchmann paid it and continued to pay subsequent ones until and including that of April, 1940. By these payments, he reduced the mortgage indebtedness by $4,500 in addition to paying $989.98 as interest. It was during June, 1940, that Tuchmann for the first time suggested to his wife that she'convey to him an undivided one-half interest in the property. Thereafter, his suggestion jripened into a demand which he renewed many times, but with each one of which Mrs. Tuchmann has refused to comply. On January 31, 1941, he instituted the present action. At that time he was .still living on the property and he continued to do so until the fall of 1941, when he left and shortly thereafter began an action for divorce, returnable to this court on .the first Tuesday of January, 1942. Following April, 1940, Mrs. Tuchmann borrowed from her aunt sufficient funds to meet seven installments totalling $3,500 and interest amounting to $410.51. The last payment was made on March 75 1942, which reduced the face of the note to $2,000, though it is now in default. Within recent months, the United States of America has placed an attachment for $3,000 on the property. The basis for this proceeding is a note which Mrs. Tuchmann endorsed at her husband's request for a transaction not connected with the Brookfield home. Another attachment in the amount of $1,000 has likewise been made by the lumber company that supplied the material for the chicken coop. The plaintiff presents a triple-headed theory to apply to the foregoing facts and claims that at least one of them entitles him to the relief he seeks. He maintains, in the first place, that a trust has resulted in his favor. "Resulting trusts are created by operation of law. They arise, notably, when the purchase money for property is paid by one and the legal title is taken in the name of another. In such a case a trust arises at once, in favor of the person paying the money, and the holder of the legal title becomes a trustee for him. This result follows the natural presumption that a purchase will inure to him who furnishes the purchase price." Ward vs. Ward, 59 Conn. 188, 195. However, when the person furnishing the money is the husband of the grantee, prima facie a gift is presumed. Corr's Appeal, 62 Conn. 403, 407. This is merely a presumption which has no evidential value and is exhausted and disappears from the case when substantial evidence tending to rebüt it has been presented. It is a presumption that rests upon in' herent probability. O'Dea vs. Amodeo, 118 Conn. 58. One must always bear in mind that the vital time for the creation or non'creation of a resulting trust is when the legal title is taken in the name of the other. "A trust must result, if at all, when the title passes." Ward vs. Ward, supra, p. 199. Hence, the importance of ascertaining Tuchmann's in' tention at the passage of title becomes apparent, for if, at that time, he intended to make a gift to his wife, it is quite immaterial that he now wishes to change his mind. This does not mean that events occurring after March, 1938, should be ignored. On the contrary, they should be and have been ex' amined, not for the purpose of creating a trust but as indicia of what was in Tuchmann's mind when he vested title in his wife. "The modus vivendi of the parties In respect to the property, since the title passed, may be important as an indi' cation of such intention in the absence of any proof aside from that furnished by the bare transaction." Ward vs. Ward, supra, p. 199. I am satisfied that Tuchmann always regarded the property as his home, not in the sense that he owned it, but exactly as his wife would have considered it to be her home, were Tuchmann its owner. His payment of taxes and insurance premi' urns, his repairing and improving the property are readily ex' plainable, not as indications of ownership, but as the natural activities of one eager to provide comforts for himself and his wife, who he knew could not provide them herself or meet the expense attendant upon the ownership of property. I do not mean to say that comparable activities would have the same significance in all cases. On the contrary, they might well lead to a different conclusion. But as applied to the in' stant case, they are not inconsistent with Mrs. Tuchmann's .ownership of the land. During her residence in New York City, she was constantly In search of security for the family. She sought to have a home she could call her own. The family had shuttled about in various places and permanency of residence was not a mark of the family life. The financial stability of her husband was probably not precarious but it obviously was uncertain, especially during the latter period of their New,York life. For at that time, he became a promoter, and through a group of .corporations whose financial structures were such as to require the juggling around of cash assets to meet the need of the moment, endeavored to provide support for his family on a scale more lavish than was justified. Litigation was not at all novel to him. He had money one day, and was financially embarrassed the next, and of all of this his wife was fully aware. He probably realised the merit of his wife's complaints as to the insecurity of the family position and decided that she should be given a home. And when he made the down payment on the purchase price of the Brookfield property, his purpose, I find, was 'to make a gift to his wife. The length of time that elapsed before he made the slightest reference to a reconveyance of an interest in the property has its own significance. Likewise is it significant that within a few months after making his demand, he left the home and instituted suit for divorce against his wife. Significant, too, is the admission found in his complaint that he intended to make a gift to his wife, though .limited, he says, to a one-half interest. Significant, also, is the ugly conclusion to which I am reluctantly forced to come, that with studied deliberation he attempted to deceive the court as to alleged conversations held in the office of Messrs. Durey, Pierson 8? Comley when the warranty deed .was delivered. Weighing all the circumstances carefully and conscientiously, I am satisfied that when the property was purchased, his intention was to make a gift and was prompted by a desire to have Mrs. Tuchmann know that at long last she was to obtain the security for the family which she had always sought. That he has since regretted his action and changed his mind is of no consequence.' The second and third theories urged by the plaintiff are that the parties were engaged in a joint adventure, and if not, then, that he ought to recover on the ground that the defendant has been unjustly enriched. As to the former, it will suffice to say that the elementary conditions necessary to establish the existence of a joint ad' venture are missing. There was no common undertaking nor a combining of the parties' money, property, efforts, skill or knowledge aimed at one common objective. Dolan vs. Dolan, 107 Conn. 342. The entire subject matter of this contro' versy arises from a gift and from nothing else. As to the latter theory, no question can be raised but that Mrs. Tuchmann was enriched. That attribute follows the re' ceipt of any gift; that is the very purpose of the donor. But the enrichment was not unjust. It was an enrichment that Tuchmann intended to create when he reduced the mortgage and improved the property. He cannot now insist it was an Indian gift. I have considered this case for longer than is customarily my wont, lest perhaps a failure to give proper weight to the various factors involved might lead to an unjust conclusion. I do the gentleman no injustice, I am sure, when I hold that he has failed to establish his case. Judgment may enter for the defendant to recover her costs.

Memorandum of decision on appeal from action of Compensation Commissioner. O'SULLIVAN, J. This is an appeal from an award of the Compensation Commissioner for the First District, dismissing the plaintiff's claim for compensation. The finding, as added to by the court, discloses these facts: For some years prior to December 8, 1941, the plaintiff had been employed as a baker by the Mohican Company, which will be referred to as the defendant. In connection with his work, he came in contact with dusts of various kinds, such as those arising from flour, smoke, soot and ashes, and had been subjected to extremes of heat and cold. During the month of September, 1940, he consulted Dr. Zeman of Hartford, who told him that an asthmatic bronchitis, from which he was suffering, was due to his occupation and that he should give up his job and seek other employment. However, the plaintiff did not accept this advice but continued on with his work. In spite of Dr. Zeman's opinion as to the source of the plaintiff's chest condition, the bronchitis is, in fact, due to a sinus and nasal condition and is not chargeable to his work. The Commissioner dismissed the claim: (1) because the malady from which the plaintiff is suffering is not due to his occupation and (2) because of a lack of jurisdiction to entertain the claim. The reasons of appeal seek corrections in the finding. While it will not affect the result, the correction 'referred to in the first reason has been granted and has been incorporated in the above recital. Another requested correction runs to the effect that the bronchitis is not traceable to the work. On this subject, there was a conflict of medical opinion. A finding cannot be held to be erroneous merely because it is based upon the opinion of one medical expert in opposition to that of several others testifying to the contrary. Driscoll vs. Jewell Belting Co., 96 Conn. 295, 300. The Commissioner made his award on February 17, 1942. About a month previous, the case of LeLenko vs. Wilson H. Lee Co., 128 Conn. 499, was decided. The opinion held that if a disease is the natural result of conditions which are inherent in the employment and which attach to that employment a risk of incurring it in excess of that attending employment in general, an award of compensation is not precluded because the risk is one which has not become generally recognised or 'because only employees unusually susceptible will suffer from the disease. If the Commissioner was satisfied that the plaintiff was susceptible to bronchitis caused by his association with dust from the materials in which his work brought him into contact, compensation would follow under the LeLenko case. It must be assumed that the Commissioner was familiar with that decision. The finding, however, shows that the bronchitis was not trace' able to the dust. This court cannot substitute its own notion on a disputed issue involving conflicting testimony for that of the Commissioner, save in the exceptional case where the latter's conclusion follows the opinion of an expert which is based on grounds so unreasonable that to accept it creates an error of law. Driscoll vs. Jewell Belting Co., supra, p. 299. The Commissioner further concluded that he was without jurisdiction to make an award because more than one year had elapsed between the date of the first manifestation of a symptom of the claimed occupational disease and that of a claim for compensation. Section 1330e of the 1939 Supplement to the General Stat' utes provides that "no proceedings for compensation.... shall be maintained unless a written notice of claim for compensa' tion shall be given within one year from the.... first manifes tation of a symptom of the occupational disease." Unless such a notice is given, the Commissioner is without jurisdiction to hear the case. Walsh vs. Waldron & Sons, 112 Conn. 579, 583; Farmer vs. Bieber-Goodman Corp., 118 id. 299, 303. The interpretation placed on the statute appears to be this: the time within which notice is to be given starts running when the employee or someone standing in such relation to him that the knowledge of such person would be imputed to him, be' comes cognisant of the manifestation of the occupational dis' ease. The duty of giving written notice Is not conditioned upon actual knowledge but upon the fact that the symptom of the disease manifests itself. Consequently, "an employee can' not close his understanding to that which is clear and plain, and if the circumstances are such that a reasonable man would clearly recognise the existence of a symptom of an occupational disease, it must be regarded as manifest in the sense of the statute; for in the law it is usually so that what a man ought to know he is conclusively deemed to know." Bremner vs. Eidlitz & Son, Inc., 118 Conn. 666, 670. It is further required that there must be a clear recognition of the symptom as being that of the occupational disease in question. However plain is the presence of the symptom itself, unless its relation to the particular disease also clearly appears, there cannot be said to be a manifestation of a symptom of that disease. In view of the finding that the plaintiff was informed during September, 1940, that the bronchitis from which he was suffering was due to his occupation and that he should give up his job and seek other employment, the plaintiff was made definitely aware of the existence of an occupational disease. Thereupon his duty required him, within one year thereafter, to give a written notice of claim for compensation to the defendant. Having failed to do so, the Commissioner rightfully decided that no jurisdiction obtained to make an award. The plaintiff stresses that the finding should be corrected by eliminating that portion which is concerned with the information given in 1940 by E>- Zeman. It is, of course, true the doctor testified that he made no statement concerning the cause of the chest condition or of its relationship to the plaintiff's work. However, the Commissioner had before him the plaintiff's testimony which was diametrically opposed to that of Dr. Zeman. It is not unlikely that the former's memory of what was said would be more apt to be correct, in as much as he was the one afflicted, as opposed to that of a professional man who probably had seen hundreds of other patients during that period of time, from 1940 until the date of the hearing, well over a year later. On a question of this sort, the Commissioner's conclusion cannot be disturbed. Accordingly, the appeal is dismissed.

Memorandum of decision de temporary injunction. FITZGERALD, J. This action was instituted by writ, summons and complaint dated July 3, 1942, wherein the plain' tiff seeks damages in the amount of $200 and, in addition thereto: (1) An injunction against the service of an execution on a judgment of summary process; and (2) a temporary injunction to the'same effect. The action is made returnable to this court on the first Tuesday of September, 1942. On said July 3, 1942, the undersigned, as a judge of the Court of Common Pleas, said court not then being in session, issued a rule to show cause requiring the defendants to appear before him on July 8, 1942, and to show cause why the ternporary injunction prayed for in- said writ, summons and complaint should not issue against them. The officer's return, which is not questioned, recites that service was duly made on the defendant William H. Marigold, Jr. (a constable of the Town of Milford) and on Attorney William Gitliti, who accepted service for the defendant Josephine Bencivenga. The hearing was duly held before the undersigned, as-judge aforesaid, on the morning of July 8, 1942, at the County Court House in New Haven. It would serve no useful purpose to set out in detailed' form the underlying facts of the matter. The allegations of fact contained in the complaint, with the exception of paragraph 8 thereof, are not in dispute. Plaintiff makes two claims of law: (1) The judgment of summary process rendered on June 16, 1942, is null and void; and (2) that in any event an "arrangement" entered into on June 16, 1942, between the defendant Bencivenga and the plaintiff in legal effect resulted in the creation of a new tenancy and that an eviction on and after July 1, 1942, would contravene the spirit and intendment of an act of the United States Congress commonly referred to as the "Rent Control Act." In support of both claims plaintiff has cited authorities. Whether or not plaintiff is absolutely correct respecting both claims, or either one of them, is not for me to determine at this time. It is sufficient to say that if plaintiff is correct as to either, the withholding from him at this time the benefits of a temporary injunction would be to inflict upon him a wrong that could not be compensated for at a later date by a money award. I am bound, morally and legally, to recognize the fact that the obtaining of living quarters in Milford and elsewhere in Connecticut at this time is a serious problem for the head of a family. When it further appears that the landlord is not to be deprived of monthly income in the way of rent, a bona fide dispute as to the status of landlord and tenant should be allowed to remain in ,statu quo until a full and complete determination of the question be had in final proceedings after the case is in court. "A temporary injunction is a preliminary order... .granted at the outset or during the pendency of an action, forbidding the performance of the threatened acts described in the original complaint until the rights of the parties respecting them shall have been finally determined by the court." Deming vs. Bradstreet, 85 Conn. 640, 659. The requested temporary injunction is granted. Pursuant to section 5899 of the General Statutes, Revision of 1930, I direct plaintiff to furnish a bond with surety satisfactory to me in the amount of $150 for reasons.specified in said statute. See, also, McAllin vs. McAllin, 77 Conn. 398, 402. Said bond may be patterned upon Form No. 458, Connecticut Practice Book (1934), p. 290. The order of temporary injunction, submitted by plaintiff on July 8, 1942, is hereby approved as to form and will issue upon plaintiff satisfying the bond requirement referred to in the preceding paragraph.

Memorandum of decision in taxpayers' action. BALDWIN, J. The plaintiffs are residents and taxpayers of the Town of Waterford. The named defendant is the first selectman of the town and the defendant, Thomas F. Horen, is the tax collector, and the other defendants are members of the board of finance of the town. At the end of the fiscal year, August 31, 1941, the town had a cash surplus 'amounting to $54,153.93 on hand and thereafter, as required by law, the board of finance prepared and caused to be published a budget for the town for the fiscal year ending August 31, 1942. This budget disclosed that this surplus of $54,153.93 had been deducted by the board of finance from the amount of the gross estimated requirements of the town for the ensuing year, in order to determine the amount required to be raised by local property taxes, and thereafter, on September 20, 1941, this budget was submitted to the annual town meeting, and by vote of this town meeting was approved. Thereafter, on March 9, 1942, the board of finance laid a tax rate of 22 mills upon the grand list, for the purpose of raising taxes sufficient to meet the gross estimated requirements of the town, without deduction from such re' quirements of the cash surplus on hand. The plaintiffs claim that it was the duty of the board of finance, in determining the amount necessary to be raised by taxation and in fixing the tax rate, to deduct from the amount of the gross requirements for the ensuing fiscal year the amount of the cash surplus on hand, and that the failure to make such deduction results in the taxpayers having to pay an excessive rate upon their respective taxable properties, amounting to approximately four or five mills, and to the creation and main' tenance of a surplus fund, and that such results are not within the reasonable limits of the taxing power. The statute, section 87c of the 1935 Cumulative Supplement to the General Statutes, after defining the duties of the board of finance with reference to the preparation and submission of the annual budget, provides as follows: "Immediately after the board of relief has finished its duties and the grand list has been completed, the board of finance shall meet and, with due provision for estimated uncollectible taxes, abatements and corrections, shall lay such tax on such list as shall be sufficient, in addition to the other estimated yearly income of such town and in addition to such revenue surplus, if any, as may be appropriated, not only to pay the expenses of the town for such current year, but also to absorb the revenue deficit of such town, if any, at the beginning of such current year." The term "such revenue surplus, if any, as may be ap' propriated", means cash on hand which may be the subject of appropriation by the board of finance together with other estimated yearly income, if any, including income from taxation. Under this provision of the statute, in laying the tax it becomes the duty of the board of finance to take the amount of its estimated expenditures for the ensuing year, plus its revenue deficit, if any, and from such total amount, deduct the amount of surplus (funds on hand), if any, and also deduct any other estimated income for the ensuing year which the town may have and then, estimating uncollectible taxes plus abatements and such additions or deductions, as the case may be, determine the amount required to be raised by taxation and the rate of such tax. The words, "and in addition to such revenue surplus", used in the provision above quoted, clearly indicate that it was the intention of the Legislature that when a surplus existed to' provide that the taxpayers should have the benefit of such surplus by including it in the budget setup and deducting it from the amount of the estimated expenditures thereby reducing the 'current levy upon the taxpayers' property. It is against the policy of the law to raise taxes faster than the money is likely to be needed by the government. People vs. Chicago & N. W. Ry. Co., 331 Ill. 544, 546, 163 N.E. 355, 356; People vs. Sandberg Co., 277 Ill. 567, 570, 115 N.E. 741, 743; State ex rel. Johnson vs. St. Louis-San Francisco R.R. Co., 315 Mo. 430, 286 S.W. 360. In the absence of statutory authority, a tax cannot be levied for,the sole purpose of accunlulating funds in the public treasury, such as for remote or future contingencies that may never occur; nor can it be levied in excess of the amount required for the purpose for which it is levied, with the intention of using the excess for another purpose. 61 C.J. Taxation §681, and cases cited. Subject to the restriction that the constitutional or statutory requirements be complied with in regard to the manner or mode of determining and fixing the amount or rate of the tax and as to the limitation of such amount or rate, the amount levied should be commensurate with public needs, and such a rate of taxation should be fixed as will produce the amounts required to be raised; and is illegal as to any excess over the amount necessary to produce the funds'required to be raised. Within these limitations the levying board, provided it uses sound business judgment, may exercise a reasonable discretion in determining what amount or rate of taxes shall be raised for any general or particular purposes; and in determining such amount it should consider and deduct funds on hand which are available and applicable to the purpose or purposes for which the tax is being levied. 61 C.J. Taxation §696, and cases cited. Funds held by a municipality, whether raised, by taxation or otherwise, are in the nature of trust funds and the officials holding or dispersing them act as trustees for the benefit of its inhabitants and 'statutes defining duties of such officials are strictly construed in favor of the taxpayers. It was the duty of the board of finance in this case to deduct the surplus amounting to $54,153.93 from its, estimated expenditures for the fiscal year of 1942, and fix the tax rate accordingly. It further appears that occasions have arisen in which some department or some office has need for more money than was appropriated for such department or office and that the board of finance, in a given fiscal year, has made appropriations for such department or office approximating $2,500 without action thereon by the town, such appropriation having been made by installments each not exceeding $500 and voted at successive meetings of the board. Section 421 of the General Statutes, Revision of 1930, provides: "Should any occasion arise whereby more money is needed for any department of the town than has been appropriated as provided for in this chapter, the selectmen shall notify the board of finance of such fact, and the chairman of such board shall forthwith call a meeting thereof to consider the appropriation for such department and the board may make the necessary appropriation therefor, after inquiry, but, if the amount required shall exceed five hundred dollars, such appropriation shall not be made until, upon the recommendation of the board, the same shall have been voted by the town at a meeting called for such purpose." It was the intention of the General Assembly that the boards of finance in the various towns in the preparation and submission of their respective budgets should recommend the appropriation of such amount of money for the use of the several departments of their respective towns for the ensuing year as was estimated such respective departments required for the conduct of its business and that if occasion arose in any department whereby more money was needed for any department, if the amount needed did not exceed $500 the board of finance, in such town, could make such appropriation without action thereon by the town, but, if the amount exceeded $500 the appropriation could not effectively be made without having been voted upon by the town at a meeting called for that purpose. This does not permit of appropriations being made in installments of $500 or less by a board of finance and without submission to be voted on at a meeting of the town called for that purpose where the amount needed by a department is in excess of $500 and the selectmen should draw no order on the treasurer of the town unless the appropriation has been made in conformity with the provisions of the statute. The parties have stipulated (1) that a permanent injunc tion may issue enjoining the board of finance of the town of 'Waterford from making further appropriations during the fiscal year ending August 31, 1942; and (2) enjoining the first selectman from issuing further checks or orders for payment of any sums appropriated by the board of finance unless such sums were or are also appropriated at a town meeting; also (3) that a permanent injunction issue requiring the board of finance and its clerk to keep its records of its meetings up to date and in the town clerk's office so that the same may be open and available for public inspection at all reasonable hours. As to the authority of the court to grant a permanent injunction of the character stipulated for restricting any appropriation and the drawing of any order, I have very grave doubt. A situation conceivably might arise in which the need of an appropriation and the payment of money was very immediate and compelling and to be met with an injunction of such character might result in hardship. Certainly it is not to be expected that either the board of finance or the first selectman will, in the discharge of their respective duties, act other than as the statutes, as construed, provide, especially in view of the penalty provided in section 422 of the General Statutes, Revision of 1930, for violation of any provision of the chapter of which 'that section is a part. As to the permanent injunction stipulated for, requiring the board of finance and its clerk to keep its records of the minutes of its meetings up to date and in the town clerk's office so that they may be open and available for public inspection at all reasonable hours, the court calls attention to section 87c of the 1935 Cumulative Supplement 'to the General Statutes, wherein the following is provided: "The board shall prescribe the method by which and the place where all records and books of accounts of the town, or any department or subdivision thereof, shall be kept." The Legislature, by this provision, has taken care, in part at least, of what the parties have stipulated for and in view of this provision the court cannot direct that the records of the minutes of the meetings of the board of finance shall be kept in the town clerk's office. These minutes are public records; they should be promptly recorded, and, being public records, they should be kept in a safe place, suitable for the protection and preservation of public .records and available for public inspection. It would seem that a permanent injunction for any of the purposes stipulated for was unnecessary and in some respects improper and in others inadvisable. If, however, the parties or either of them desire to confer with the court upon any of these elements of the case the court will cooperate. The answer to the first question submitted in the stipulation is: The cash surplus in the general fund at the end of the fiscal year should be applied in reducing the amount of the estimated expenditures for the ensuing year in order to determine the rate of tax to be laid upon the taxable property for such year. The answer to the second question submitted in the stipulation is: The board of finance may make an appropriation of not more than $500 for any one purpose or department when needed without submitting it to the town to be voted on at a meeting held for that purpose.. It may not, however, make appropriations in so-called installments of $500 or lesser amounts and thereby avoid submission of such appropriation to a meeting of the town when a larger amount is needed. The answer to the third question submitted in the stipulation is: The board of finance during any fiscal year may appropriate more than $500 to any one department, when needed, but in such event such appropriation should be made and submitted to the town to be voted on af a meeting called for that purpose. If the parties or either of them do not desire to confer with the court upon the question of substance or form of any injunction herein, upon advice to the clerk of such fact within ten days, judgment may enter in accordance herewith.

Memorandum of decision on motion to erase for want of jurisdiction. FITZGERALD, J. In March, 1942, plaintiff instituted an action against defendant in the Small Claims Court of Stamford, to recover damages to his car in the amount of $75. The question herein presented is the propriety of defendant effecting a transfer of the case from the small claims docket to the regular civil docket of the Stamford Municipal Court and when this was accomplished effecting another transfer of the case to this court. Plaintiff concedes that defendant complied with the rules relating to transfer from the small claims docket to the regular civil docket of the Municipal Court but strenuously contends that the subsequent action of that court in granting defendant's further motion for transfer of the case to this court was improper. It is on this aspect that the jurisdiction of this court is raised on plaintiff's motion to erase for want of jurisdiction. The latter transfer was objected to by plaintiff in -the court below and is renewed under the scope of his aforesaid motion. Plaintiff's claims, in the main, are two: (1) that the court below, in permitting the transfer of the case to this court, overlooked section 746f of the 1941 Supplement to the General Statutes; and (2) that in any event plaintiff's claim for damages, or the amount in demand, is $75 and therefore is under the minimum $100 jurisdiction of this court. As to the plaintiff's first claim: Section 746f is a part of chapter 281b of the 1941 Supplement to the General Statutes. The statute reads, so far as is material to the point under consideration: "The provisions of this chapter shall not affect. . . the procedure for the hearing and determination of small claims." The initial transfer of the case from the small claims docket to the regular civil docket was sanctioned by the rules of practice and under the revised charter of the City of Stamford. See Practice Boo\ (1934) §271, p. 83; "An Act Revising the Charter of the City of Stamford," Special Laws of 1933, No. 526, §183, p. 1249. It is clear, therefore, that after the case was validly transferred from the small claims docket to the regular civil docket of the Stamford Municipal Court, section 746f had no application as the case was no longer on the small claims ,docket. Upon its transfer to the regular civil docket of the Stamford Municipal Court, the "procedure" to be followed thereafter and the "hearing and determination" of its issues were outside the forum of the small claims court which, in point of fact, is but a division of the Stamford Municipal Court functioning on a special basis. In general, see Practice Book §270-287, pp. 83-86, which relates to all small claims courts in Connecticut. Accordingly, plaintiff's first claim is without merit. As to plaintiff's second claim: It has already been noted that plaintiff's claim is in the amount of $75. Section 808f of the 1941 Supplement to the General Statutes confers exclusive jurisdiction on the Court of Common Pleas of "all civil actions for legal relief only, wherein the matter in demand shall exceed one hundred dollars, but shall not exceed twenty-five hundred dollars." . Plaintiff argues that since the amount in demand is less than $100, this court is without jurisdiction to entertain the transfer. Standing alone, the claim appears to be sound. However, other statutes have to be considered in connection with section 808f. In 1939 the General Assembly .abolished the use of juries in the then designated "minor courts." (Sup. {1939} §1365e.) In 1941 this statute was further amended as to certain details. (See Sup. {1941} §741f, being a part of chapter 281b of said Supplement entitled "Municipal Courts.") It is therein provided in the latter, and controlling, statute that with the exception of actions of summary process "the defendant may, by written motion... .request a transfer of such action to the court of common pleas in the county in which such action was brought. . .{and} The defendant shall pay the entry fee and jury fee in the court to which the action is transferred and such court shall enter the action upon the jury docket and shall proceed with such action in the same manner as if such action had been originally returned thereto." It would appear, therefore, that it was the intention of the General Assembly to accord a defendant in a civil action in a municipal court, excepting a defendant in an action of summary process, the right of a jury trial by transfer of the action to the Court of Common Pleas irrespective of the amount of damages claimed or sum in demand, be it under or over $100. The Federal census of 1940 disclosed that the City of Stamford had a population well in excess of 15,000 (State Register and Manual {1941} p. 327, population of Stamford in 1940: 61,215), and accordingly its Municipal Court has civil jurisdiction ranging from $1,000 down to an infinitesimal amount (Sup. {1941} §737f) de "the matter in demand." So also, appeals from judgments rendered in civil actions brought before a justice of the peace, except in summary process cases, are appealable "to the court of common pleas in the county in which such judgment was rendered." (Sup. {1941} §814f.) It is to be noted that such actions returnable to a justice' of the peace in the first instance are limited to a "matter in demand" not exceeding $100. (Gen. Stat. {1930} §5437.) Consequently, there are situations where the Court of Common Pleas is required to determine the issues in cases involving claims for legal relief and in which damages sought, or the amounts in demand, are under $100. This is so irrespective of section 808f of the 1941 Supplement to the General Statutes. It is clear that the latter statute, being an amendment to section 5438 of the General Statutes, Revision of 1930, is referable only to an extension of jurisdiction of Common Pleas and the increasing of the minimum jurisdiction of the Superior Court in "all civil actions wherein the relief, legal or equitable, severally and distinctly demanded, shall exceed twenty-five hundred dollars." (Sup. {1941} §813f.) Accordingly, plaintiff's second claim is without merit. Attorney James A. Dougherty of Greenwich was allowed to be heard on the motion as amicus curiae. Among other things Mr. Dougherty has stressed that "it was never intended that a case involving less than $100 and perhaps as low as $5 or S10 be brought to (Common Pleas) and tried before a jury"; that the purposes of simplified procedure and prompt and inexpensive hearings would be nullified. The short answer to these claims, and other similar claims, is that the court is bound to follow the statutes as they exist on the books. To adopt an interpretation contrary to the express language of the statutes would -in reality be to "impute to the lawmakers a subtlety of discrimination which they would probably disclaim." Cortes vs. Baltimore Insular Line, Inc., 287 U.S. 367, 375, quoted in Jewett City Savings Bank vs. Board of Equalization, 116 Conn. 172, 183 and O'Dea vs. Amodeo, 118 id, 58, 65. In conclusion the court states that it agrees with defendant that the lawmakers had in mind the declaration of rights contained in the Constitution of Connecticut (Art. 1, §21: "The right of trial by jury shall remain inviolate") in providing for a jury trial upon transfer of a case from the regular civil docket of a municipal court to the Court of Common Pleas. The fact that a defendant, as in this case, effects two transfers (from the small claims docket to the regular civil docket of the Municipal Court, and then to this court) does not contravene the statutes. How else could the defendant obtain a jury trial? How else could the constitutional requirement de jury trial be complied with? A plaintiff who returns a case to the Small Claims Court, or at the outset brings his action on the civil side of a municipal court, in point of fact does so knowing that a jury trial is not available to him therein. He waives a trial by jury. The defendant in such case is held to no' waiver for he has no choice at the outset. Thereafter the defendant, by following the rules pertaining to transfer, is allowed to exercise his constitutional right to jury trial. Whether or not there should be a curtailment on a defendant's right to transfer if the amount in demand is very nominal, let us say under $20, is a matter for the Legislature to consider and not for the court to prescribe judicially. It would appear that under the Federal rule a jury trial is only accorded as a matter of right when the amount in demand is over $20. 35 C.J. Juries §24. But this is by virtue of the 7th Amendment to the United States Constitution. The Con' necticut Constitution, and amendments thereto, express no qualification. (See, particularly, Connecticut Constitution, Art. 1, §21, supra.) Even if the General Assembly hereafter were to close the door to jury trial in cases involving a small sum of money by enacting a statute that would support the position of this plaintiff and other plaintiffs in a similar sitúa' tion, such a statute may be unconstitutional. Leahey vs. Heasley, 127 Conn. 332, 336. However, this aspect is not before the court. Further discussion is unnecessary. The motion to erase is denied.

Memorandum of decision in action involving oral trust. FITZGERALD, J. Anna Fidorski, hereinafter referred to as the decedent, died intestate at New London on June 16, 1941. Plaintiff, as administrator upon the estate of the de' cedent, his deceased wife, brings this action to recover of the defendant an alleged balance of $600 claimed to be due the estate by the defendant from money turned over to the latter by the decedent in her lifetime. The theory adopted in the complaint is that the decedent, a short time before her death (paragraph 2) "placed in the hands of the defendant, as her agent, the sum of $950.00 with instructions that said sum was to be used by the defendant to pay the [decedent's] hospital bills, doctor bills, and such other expenses as the [decedent] might direct"; and (paragraph 3) "Thereafter, and until the death of the [decedent] on June 16, 1941, the defendant paid such bills out of said fund as the [decedent] directed her to pay, and following the death of the [decedent], the defendant paid other bills chargeable to the [decedent's] estate"; and (paragraph 4) "Following the payment of all such bills, the defendant had on hand a balance of approximately $600.00 out of said fund" which she refuses to turn over to the plaintiff in his representative capacity. The defendant, in her answer, denies the allegation of agency and pleads by way of special defense that on or about June 16, 1941, the decedent delivered over to her certain "personal property"; that (paragraph 2) "Said personal property was delivered to and placed in the possession of the defendant by the [decedent] in trust for certain uses and purposes named by the [decedent]"; that (paragraph 3) "The defendant has completely performed and discharged said trust in accordance with the uses and purposes as named by the [decedent], and was not indebted to the [decedent's estate] at the commencement of this action." A subsequent amendment to the foregoing special defense merely recites that the purpose of the alleged trust was to provide for the necessities of the decedent during her life and upon her death "the balance thus remaining of said trust principal" was to be paid over "to certain named persons.... in stated amounts." PlaintifF, in his reply, denies the allegation of trust. - In compliance with plaintiff's motion for disclosure filed before trial, defendant disclosed that the "personal property" in question was cash in the amount of $900 and that the "claimed trust" was ^not evidenced by a writing. Plaintiff and the decedent were married in 1924 and there are no children of the union. The decedent had not been in good health for some three or four years before her death, in her late fifties, which resulted from a tumor. Plaintiff concedes that the decedent was mentally sound at the time of the transaction hereinafter considered. So also, he concedes that no undue influence was exerted upon the decedent by the defendant or by any other person. The evidence disclosed that in May, 1941, the decedent caused to be closed out her account in the Savings Bank of New London. At this time the decedent was not a well woman and she executed the withdrawal of the funds in her account by signing a withdrawal slip, duly witnessed, authorising a woman friend as her agent for presentation thereof and acceptance of the money from the bank. The fund thus withdrawn was about $1,200 and was turned over by the agent to the decedent. Thereafter the decedent sent word to the defendant and requested that she pay her a visit. The decedent and the defendant had been close friends for more than 30 years. At the subsequent visitation (late May or early June, 1941) the decedent turned over the sum of $900 to the defendant and requested the defendant to pay out of the fund all doctors' and hospital bills as well as donations for religious purposes, and to turn the balance over to her sister and her sister's adopted daughter. A very short time thereafter the decedent was removed to the hospital and died on June 16, 1941. The defendant, in compliance with the directions of the decedent, in fact made all specified payments from the fund in her possession. Some medical items were paid before the decedent died, the remaining were paid after. The balance of the fund remaining after the payment of medical and re' ligious items was turned over by defendant to the decedent's sister and her adopted daughter per instructions. About S400 went into the latter channel. It is true that the decedent did not want her husband, the plaintiff herein, to know of this transaction. Certain aspects of the evidence would warrant the conclusion that the plaintiff and the decedent did not repose any great amount of trust and confidence in each other. The plaintiff's remarriage three weeks after the decedent's death gives rise to implications that require no discussion beyond this passing reference. The proceeds of an insurance policy on the life of the de' cedent were more than ample to pay the funeral expenses and such expenses have been paid therefrom by the plaintiff and the balance pocketed by him as named beneficiary. There are no claims of any character outstanding and unpaid against the estate. The claim of the plaintiff administrator that the money turned over by the decedent to the defendant represented his own earnings saved over a period of years by the decedent is rejected by the court. The subordinate facts do not permit this finding even if the court were to read into the complaint a theory of action that is not expressly alleged therein. It is expressly found that the money turned over by the decedent to the defendant represented her own money in the same manner as the household furnishings were admittedly her own separate property derived from an earlier marriage years ago. It seems clear that the decedent shortly before her death manifested an intention to create, and did create, a valid oral trust. She turned over complete control and possession of the money to the defendant with sufficiently clear directions as to its uses. It is true that the word "trust" or "trustee" was not employed. But that is not fatal. The woman was ill. She knew intuitively that her time on this earth was short. It was short. She expressly stated to the defendant that she was adopting the described method of payments and gifts be' cause she knew that her wishes and intentions would be hon' ored. They were honored'. Defendant on cross examination testified that if the decedent had at any time requested her to give back the money she would have done so. This aspect is not fatal to the claim of the creation of a valid trust. For example, the fact that a settlor of a trust may expressly re' serve to himself the right of revocation in no way defeats the creation of a valid and otherwise enforceable trust when the right of revocation has never been exercised. The following points are stressed: 1. A trust de personal property may be created orally. See McDonald vs. Hartford Trust Co., 104 Conn. 169, 184, and cases there cited, including 3 Pomeroy, Equity Jurisprudence (4th ed., 1918), §1010. 2. The 'settlor must manifest an intention -to create a trust. An undisclosed state of mind is not sufficient; neither is a secret intention on the part of the settlor of any efficacy. But no particular form of words is necessary for the manifesta' tion of the requisite intention. Whether or not the word "trust" or "trustee" is or is not employed is of no special significance. See 1 Scott, Trusts (1939) §23, 24. 3. Assuming that the decedent reserved unto herself the right to revoke the arrangement with the defendant, such would not defeat the creation of a valid trust. "A power of revocation is perfectly consistent with the creation of a valid trust." Stone vs. Hackett, 78 Mass. (12 Gray) 227, 232, quoted by our Supreme Court in Cramer vs. Hartford-Connecticut Trust Co., 110 Conn. 22, 28. In the case at bar it would appear that the decedent said nothing on the revoca' tory aspect and in any event the defendant carried out to the letter her instructions, there having been no attempted revocation before the decedent's death. 4. The fact that the decedent, by virtue of the arrange' ment with the defendant, accomplished "to a large extent the purpose ordinarily served by the making of a will" is not controlling. It is expressly found that she divested herself of the control and management of the fund in favor of the defendant for designated purposes. See Cramer vs. Hartford-Connecticut Trust Co., supra, p. 32. 5., Plaintiff's complaint alleges that the defendant was to hold and disburse the money for the decedent in the role of agent. Since most of the fund was disbursed after the decedent's death, and death ipso facto ends an agency relationship, this claim is of vital importance. In argument plaintiff speaks of bailment rather than agency. Without pointing out the distinctions between bailment and agency, and distinctions there are, the court holds and rules that the relationship between the decedent and the defendant de money in question was that of settlor and trustee and not bailor and bailee or principal and agent. As to the distinctions between a bailment and trust relationship and an agency and trust relationship reference is made to 1 Scott, Trusts (1939) §5, 8; 1 Bogert, Trusts and Trustees (1935) §11, 15; Restatemerit, Trusts §5, 8. 6. To conclude that the defendant occupied a status other than a trustee would do violence to the facts and necessarily result in a gross miscarriage of justice. The exigencies of the case do not require further discussion and comments. Judgment will enter for the defendant to recover her costs.

Memorandum of decision in action seeking relief from default and forfeiture of lease. PARMELEE, J. The plaintiff is the lessee of space in a building in Willimantic, Connecticut, situated at the corner of North and Valley Streets. The building in which the leased premises are located was formerly known as The Wind' ham Silk Company plant. The defendant is the owner of the leased premises as successor and assignee of The Windham Silk Company, the original lessor. The lease between the plaintiff and the defendant's predecessor and assignor is dated April 12, 1938, and ever since its execution on said date the plaintiff has been and now is in possession of the leased premises, maintaining therein a manufacturing establishment equipped with heavy machinery. The lease is for ten years, beginning July 1, 1938, and provides, among other things, a graduated rental scale, option to renew for a further period of five years, and an option to purchase at an agreed price. It is provided that rentals are to be paid monthly on the last day of each month and "that if the said rent shall remain unpaid 30 days after the same shall become payable.... then this lease shall terminate, and said lessor may at any time thereafter without any re'entry recover possession thereof in the manner prescribed by the statute relating to summary process. ." On August 19, 1941, the defendant instituted an action in summary process returnable on August 28, 1941, before John B. Harvey, Esquire, a Justice of the Peace, seeking to recover possession of the leased premises by reason of a claimed default in the payment of the rent for the months of February and March, 1941. Said summary process action has not been heard but is now pending. On September 19, 1941, Hon' orable Thomas J. Molloy, a judge of this court, granted, upon the plaintiff's application, a temporary injunction enjoining the defendant from proceeding further in the said summary process action until further order of this court. The case is now at issue on the plaintiff's claim that it be relieved of the default and forfeiture of said lease as claimed by the defendant. The rent in the amount of $58.34 for the month of Feb' ruary, 1941, was due on February 28, 1941, with the privilege of 30 days additional before default; also the rent in the amount of $58.34 for the month of March, 1941, was due on March 31, 1941, with the same 30 day privilege. The de' fendant bases his claim for forfeiture of the lease on the failure of the plaintiff to pay the rent for these specified months when due or within 30 days thereafter. On March 7, 1941, the plaintiff's treasurer and general manager, Edward A. Teplow, wrote and mailed a letter addressed to the defendant at its known address stating that the plaintiff was crediting the February rent on an account owed to it by the defendant (Plaintiff's Exhibit G), stating in the letter: "Unless I will hear from you to the contrary I shall handle the amount you. owe us as I have outlined." The plaintiff received no reply to this letter. The defendant claims not to have received it. On March 10, 1941, the plaintiff drew its check to the defendant.'s order for the March rent, leaving the same at its own office at the leased premises in Willimantic to be called for by a representative of the defendant. This was pursuant to a custom inaugurated by the defendant at the beginning of the plaintiff's occupancy and carried on with but few variations up to this time. This check for the March rent was not called for by the defendant, and by letter dated May 15, 1941, the defendant notified the plaintiff that its lease was terminated by virtue of the plaintiff's failure to pay the rent for the months of February and March. On May 17, 1941, the plaintiff forwarded to the defendant's attorney the said check for the March rent, and also a check for the April rent, stating that the February rent had been paid, and also stating that it was expected that the defendant would have called for these checks. Since this time rent checks have been sent by the plaintiff to the defendant's attorney each month as they came due, all of which checks have been received. Defendant has not returned any of said checks but is holding the same. The plaintiff in good faith believed that the February rent had been fully paid by a credit to an account it considered owed to it by the defendant. This method of crediting rent against an account due had been used on a previous occasion with no objection on the part of the defendant. Relying on the usual custom of .the defendant to call for the rent, the check for the March rent was left in the office to be called for. The defendant had never notified the plaintiff of its intention to abandon this custom. It does not appear that there was any wilful or intentional default on the part of the plaintiff in the payment of either the February or the March rent. That the default was intentional may not be material in the case of a default in the performance of a covenant to pay rent. Thompson vs. Coe, 96 Conn. 644. It is elementary that a court of equity, even in the absence of special circumstances of fraud, accident or mistake, may relieve against a forfeiture incurred by the breach of a cove' nant to pay rent on the payment or tender of all arrears of rent and interest by a defaulting lessee, since the rent is the object of the parties and the forfeiture only an incident in' tended to secure its payment. Thompson vs. Coe, supra; Kann vs. King, 204 U.S. 43; Sheets vs. Selden, 7 Wall. 416. In Thompson vs. Coe, supra, p. 656, the court quoted from Mactier vs. Osborn, 146 Mass. 399, 402, as follows: "The result of the authorities, supported by sound principle, is, that where there has been a breach of a covenant to pay rent equity will relieve against a forfeiture although the breach is wilful on the part of the lessee." "The ground on which a tenant gets relief in equity from the forfeiture of his estate for a failure to pay rent is that in equity the landlord's right of re'entry is given as security for the payment of the rent, and on the rent being paid the very thing is done for which the security was given. Although the payment in that case is made after it is due, on interest being paid compensation is made for the delay in the perform' anee, and on compensation being made the plaintiff is entitled to relief." Thompson vs. Coe, supra, p. 655, quoting from Gordon vs. Richardson, 185 Mass. 492. This is a long term lease with option to renew and to pur' chase. The lessee has established on the premises a manu' facturing business, installed machinery and equipment, and has at present several thousand dollars worth of uncompleted orders in process. If the plaintiff is dispossessed at this time, it will result in serious financial loss, and a hindrance in the production of national defense contracts, upon which the plaintiff is now working. The plaintiff has offered payment of the rent demanded and it does not appear that the defendant has suffered a loss or unreasonable inconvenience from the delay or default on the part of the plaintiff. To relieve the plaintiff in this action against the forfeiture claimed for nonpayment of rent for the months of February and March, 1941, is within the settled practice of equity. To do otherwise would inflict a grave hardship on the plaintiff lessee while at the same time it appears that the defendant lessor has suf' fered no loss or unreasonable inconvenience because of the delay or default. The issues are found for the plaintiff and judgment may be entered for the plaintiff relieving it of default and forfeiture of said lease on account of the nonpayment of rent for the months of February and March, 1941, and for the plaintiff to recover its costs.

Memorandum of decision on demurrer. QUINLAN, J. These parties entered into an arbitration. An award of arbitration cannot be repudiated by the mere act of one of the parties. It has the effect of a judgment. Lehrman vs. Prague, 115 Conn. 484. This action on the lien is not a repudiation. The arbitration simply fixed the amount that was due. By process of foreclosure of the lien an attempt is being made to collect the arbitrated amount. The demurrer to the special defense and counterclaim is sustained.

. Memorandum of decision on demurrer to defense and cross petition. O'SULLIVAN, J. The substance of the complaint is that the defendant has failed to honor that part of a Nevada divorce decree obtained by the plaintiff in 1934, which required him to make certain payments of alimony to the plaintiff. The relief sought is that the Nevada decree be made a decree of this court, that an accounting be ordered, and finally that money damages be awarded. The second defense sets forth that ill times have fallen on the defendant since 1934, and that his financial condition has so far undergone a change for the worse through no fault of his own, as to make his burden, under the Nevada decree, unfair and unreasonable, all of which is known to the plaintiff, who, nevertheless, invokes equity to enforce her rights, though .she is unwilling to do equity herself. Then, by way of cross petition, he alleges the same facts that are found in the second defense, and seeks various forms of relief, as, for example, that the court determine the extent of his present ability to pay alimony to the plaintiff and re.•strain her from seeking, through the medium of a court of equity, payment of an amount in excess of what he is financially able to pay. To the second defense and to the cross petition, the plaintiff has addressed a demurrer, whose gravaman is that this court cannot modify an award of alimony contained in a decree of absolute divorce granted in Nevada, where the power to modify has not been reserved by the court or where no reference is made in the decree to an agreement between the parties, recognizing the right to seek a change in its terms. Under the law of Nevada, where no statute on the subject is available, the wife's allowance once made is final (Sweeney vs. Sweeney, 42 Nev. 431, 179 Pac. 638), unless the decree itself expressly reserves the power to modify it (Lewis vs. Lewis, 53 Nev. 398, 2 Pac. (2d) 131), or unless the decree approves a settlement which in turn provides for a modification (Aseltine vs. Second Judicial District Court, 57 Nev. 269, 62 Pac. (2d) 701). In spite of this finality which the defendant concedes exists save under the exceptions above noted, he urges that he is entitled to an equitable consideration of his situation, not for the purpose of attempting to modify the Nevada decree but rather to limit the extent to which a court of equity in this State will enforce it. He cites Johnson vs. Johnson, 196 S.C. 474, 13 S.E. (2d) 593, to support his claim, and undoubtedly this decision indicates that his position is sound. Unfortunately, however, I am unable to decide whether a Connecticut court should follow the Johnson case, whose logic, I am frank to say, is most persuasive. The difficulty is this: the parties have assumed that the Nevada decree and the agreement entered into between the parties are a part of the record. The fact, however, is to the contrary, even though the complaint makes reference to them as exhibits. Through oversight, apparently, they have not been filed. As they are not a matter of record in this case, their contents cannot be considered. As the three grounds of demurrer are based solely on what appears in these missing documents, the demurrer collapses, and must be overruled, I regret to say, entirely on technical reasons which carfnot be overcome.

Memorandum of decision on temporary injunction. DEVLIN, J. The question in this injunction hearing concerns the effect to be given to the following restrictive cove' nant contained in the deed of property purchased by the de' fendant: "Said premises are conveyed subject to the following restrictions: that said premises shall be used solely and wholly for residential purposes; that no structure shall be erected, altered, placed or permitted to remain thereon, other than a one family dwelling house, not to exceed two stories in height, and conforming to and in harmony with existing structures in this tract Defendant is the owner of a tract of land west of the de' velopment in which plaintiffs own a house, and having pur' chased, through an agent, the lot adjoining that of the plaintiffs, seeks to use it as a highway to connect his development, Barton Ridge, with that known as Sunset Farms. The original tract comprising Sunset Farms' was owned by Esther G. Mills and on April 7, 1941, by virtue of a map filed with the Town Clerk of North Haven the plot was dh vided into 53 lots. In the disposition of lots both before and after the filing of the map all deeds, with the exception oí two, contained the restriction as above noted. That one may subdivide a tract of land and sell several par' cels to separate grantees imposing restrictions upon their use pursuant to a general plan of development or improvement is well recognized by the authorities. Baker vs. Lunde, 96 Conn. 530. Such restrictions constitute negative easements which may be enforced by any grantee against any other grantee, each parcel becoming both a dominant and servient tenement. Armstrong vs. Leverone, 105 Conn. 464, 471; Gage vs. Schavoir, 100 id. 652, 662. "The creation, in a building development scheme, of an area restricted to residential purposes contemplates the continued existence of such an area from which business is excluded. . . Purchasers of lots in such an area buy in reliance upon the fact that all other lots in the area are subject to the same re' strictions as those contained in their own deeds, and that the entire development will retain its character as a purely resi' dential district. So long as it remains possible to carry out the original purpose of the development each purchaser of a lot has a right to the protection of his easement in all the other lots in the restricted area, in the absence of conduct on his part constituting laches, waiver or abandonment. It is only when there has been a radical change in the conditions existing when the restrictive covenants were created which completely defeats the objects and purposes of the covenants so that they are no longer effective, and their enforcement would not afford the protection which was in the contemplation of the parties, that equity will hold the restrictions'no longer "enforceable." Bickell vs. Moraio, 117 Conn. 176, 181. The defendant makes the claim that this particular lot has been dedicated for public purposes as a public highway but no evidence is offered to support this theory. The filing of the map of Barton Ridge, in which lot No. 47 is set out as a street, did not constitute a dedication, for the defendant ex' pressly agreed at the time it was filed that "if the extension of Barton Drive into Vista Road is prohibited by court action or otherwise, that it will not dead'end said Barton' Drive." At most, the acceptance by the Town Clerk of North Haven was conditional upon there being no objection to the proposed highway layout. The defendant makes the' further claim that a fair interpre' tation of the restrictive clause in question would permit any use of the property which would be consistent with its use for residential purposes only. In other words any use of this lot which might be reasonably incidental to its use for residential purposes is. permissible. It points out that the re' .strictions with respect to both sections are almost identical, "the quality of the buildings, size of the lots, and various other facts, constitute in effect one single homogeneous community" and the installation of the proposed street serving both communities is a permissible use reasonably incident to the use of the property for residential purposes only and not one contra to the restriction. In support of this contention defendant cites the case of Mellitz vs. Sunfield Co., 103 Conn. 177. The restrictions in that case, however, specifically limited the type of building to be erected, and no mention is made of the land itself. In the present case there is a definite limitation on the type of building to be erected and by the clause "that said premises shall be used solely and wholly for residential purposes" a definite limitation upon the use of the land itself is imposed. Covenants restricting the free use of real property, although not favored, will nevertheless be enforced where the intention of the parties is clear in their creation, and the restrictions and limitations are confined to a lawful purpose and within reasonable bounds. Due regard must be had for the purpose contemplated by the parties to the covenant, and the words used must be given their ordinary and obvious meaning as understood at the time the instrument containing the covenants was executed. The expressed intent of the parties is the controlling factor. Easterbrook vs. Hebrew Ladies Orphan Soc., 85 Conn. 289. That the parties intended the premises should be used only for residential purposes would seem to 'follow from the specific use of the words "solely and wholly" in connection with the word "premises" and in a clause separate and distinct from one defining the type of structure to be built. The word residence is one of many meanings, but when used in this case clearly indicates its meaning to be a dwelling house where a person lives in settled abode. The purposes for which the property is to be used is limited not only to "residential" as stated in the covenant but this is the only purpose for which it is to be used, and the restriction covers the entire tract as indicated by the word "wholly." The use of the words "solely and wholly" would seem to exclude all uses of the property other than for residential purposes. Moore vs. Stevens, 90 Fla. 879, 106 So. 901. The court is of the opinion that it was the intention of the parties by these covenants to not only limit the type of building to be erected but also to limit the specific use to which the property itself was to be employed and the defendant by at' tempting to make use of the lot as a roadway goes beyond the restrictions imposed. Whereupon it is adjudged that the defendant be and it is hereby temporarily enjoined, under penalty of $1,000, against the use of the following described property for a highway or street: All that certain piece or parcel of land, with all the improvements thereon, situated in the Town of North Haven, in said County and State, known as lot No. 47 on a Map of Sunset Farms, Map Number 2, North Haven, Conn., owned by Charles Mills, North Haven, Conn., surveyed by Frederick C. Hahn, Scale 1 inch equals 100 feet, October 1, 1940, on file in the North Haven Town Clerk's Office, said lots being bounded: EAST by Vista Road, 88 feet; SOUTH by lot No. 48 on said map, 145 feet, more or less; WEST by land now or formerly of Robert Barton, 88 feet, more or less; NORTH by lot No. 46 on said map, 141 feet, more or less; until further order of the court in the premises.

Memorandum of decision in action for reformation of deeds and other relief. O'SULLIVAN, J. This is an action brought against Giovan' nina Mataraiao, Michele Matarazao, and Carmela Mastriano, seeking legal and equitable relief as the result of a controversy involving a boundary line. On August 20, 1913, the plaintiff purchased from Nellie F. Houston a parcel of land situated at the northeasterly corner of Green, and Hamilton Streets in the City of Bridgeport, which, for convenience, will be referred to as plot No. 1. Its description, as set forth in the deed, ran as follows: North on land now or formerly of Thomas Kelly, 138 feet more or less; East on land now or formerly of the estate of William Casey, deceased, 50 feet, more or less; South on Hamilton Street, 150 feet, more or less; West on Green Street, 50 feet, more or less. On September 13, 1916, she purchased from Zoila Galla another parcel, which will be called plot No. 2 and which ad' joined plot No. 1 on the north. The deed described the land as follows: North on land now or formerly of William Casey, 148 feet, more or less; East on land now or formerly of William Casey, 50 feet, more or less; South on land now or formerly of John O'Brien, 148 feet, more or less; West on Green Street, 50 feet, more or less. Based on these two descriptions, Mrs. Scinto apparently had acquired title to 100 feet, more or less, on Green Street. Actually, this was not the fact, although she was unaware of any shortage at the time of her purchases. The correct amount of frontage on Green Street for plot No. 1 was 45.08 feet, and 49.33 feet for plot No. 2. It appears that in 1916, when plot No. 2 was bought, an old fence stood on the division line between' the two parcels. This fence began at a point on Green Street 45.08 feet north of the intersection of the street lines of Green and Hamih ton Streets and thence, along the - line of an inside angle of 79°41, ran easterly to the Casey land which it met at a point about 50 feet north of Hamilton Street. Some time after 1916, the fence separating the two parcels was removed, but the post on the Green Street sidewalk from which the fence ran east' erly was replaced at exactly the same location by -another used in connection with a new fence erected along the sidewalk. On January 31, 1928, Mrs. Scinto conveyed plot No. 1 to the defendants,. Giovannina and Michele Mataratao, both grantor and grantees intending that the deed should embrace only the parcel obtained from Mrs. Houston and, more spe' cifically, that the Green Street frontage should include no more than the distance between the street lines' intersection and the post on Green Street. Although this distance was but 45.08 feet, it was described as 50 feet, more or less. This was in' accurate and expressed a greater number of feet than Mrs. Scinto intended to convey or the Matarazzos to receive. On March 4, 1929, the latter conveyed plot No. 1 to the defendant, Carmela Mastriano. The grantee knew that the land on Green Street was to run only to the post, and although the same distance of 50 feet was used as had appeared in deeds from prior grantors, the parties intended that title to only so much land on Green Street as ran to the post was to pass. Some time during 1940, Mrs. Mastriano caused the parcel to be surveyed, and then for the first time discovered that the 50 feet bound on Green Street extended 4.92 feet beyond the post, at which point, by the way, her husband had chiseled a cross-mark into the sidewalk at the time negotiations were being had concerning its purchase from the Matarazaos. When Mrs. Scinto learned of the discrepancy in the description, she made a commendable effort to avoid unnecessary litigation over a piece of land, whose value is grossly disproportionate to the expense entailed in maintaining a law suit, by offering to Mrs. Mastriano $200 for a quitclaim deed of the 4.92 foot strip. This offer, which was made not as a concession of Mrs. Mastriano's ownership but solely to solve peaceably the problem between the parties, was refused. From then on, relations grew strained, and eventually Mrs. Mastriano erected a concrete wall, about 15 inches high, capped by a five-foot wire fence, as close to a line extending easterly from Green Street at a point 50 feet north of Hamilton Street as the presence of two dwelling houses on plot No. 2 would permit. To follow the exact line would have required the removal of a small portion of the southwest corner of a dwelling house in the rear of plot No. 2. The height and position of the wall acts as a dam, restraining rain water from flowing in its natural course from plot No. 2 to the street, and quite frequently an areaway in the rear of the house on plot No. 2 facing Green Street has been flooded to a depth of several inches, all of which has resulted in the creation of a nuisance. On December 19, 1940, Mrs. Scinto brought this action. Her claims for relief are (1) damages; (2) a mandatory injunction requiring Mrs. Mastriano to remove the wall and fence; (3) reformation of the deeds from herself to the Matarazaos and from the latter to Mrs. Mastriano; and (4) such other relief as may be equitable and necessary under the circumstances. That a mutual mistake was made by the grantors of the two deeds has been established by unequivocal, certain and satisfactory evidence, and in as much as no bona fide purchaser for value without notice is affected, the rule enunciated in Snelling vs. Merritt, 85 Conn. 83, 100, is applicable. "To warrant. . . reformation.... on the ground of mutual mistake, the mistake must have been common to both parties, and it must appear that. . .both have done what, neither intended, and the evidence should be clear, substantial, and convincing as to both those facts." Corticelli Silk Co. vs Slosberg, 101 Conn. 44. The real agreement between the parties to each deed was to buy and to sell only from the corner of Green and Hamilton Streets to the post 45.08 feet away. In as much as each deed includes 4.92 feet more than the parties intended, each fails' to express the real agreement of the parties in each transaction. Mrs. Scinto's neglect to verify by survey the actual frontage on Green Street does not, under the circumstances of this case, defeat her right to relief. Our rule is that negligence may not of itself be a sufficient ground for refusing relief if it appears that the other parties have not been prejudiced thereby. Cherkoss vs. Gasser, 123 Conn. 368. These mistakes should be corrected and my chief anxiety is as to the appropriate machinery to be employed to accomplish the desired objective. So far as the plaintiff and the Matarassos are concerned, no difficulty arises. The deed from the former to the latter should be reformed to effectuate the true agreement. That part of the description of the premises reading as follows, to wit: "West: On Green Street, Fifty (50) feet, more or less", shall be reformed by substituting the following, to wit: "West: On Green Street, forty-five and eight one-hundredths feet." Just how to handle the problem occasioned by the mistake in the deed from the Matarassos to Mrs. Mastriano is more pussling. One line of thought suggests an order that Mrs. Mastriano execute a quitclaim deed to the plaintiff of the triangular shaped parcel over which this dispute has arisen. Another suggests that in as much as all parties to be affected are before the court, the deed from the Matarassos to Mrs. Mastriano may likewise be reformed. I see no sound reason why this cannot be done. It will thus terminate litigation. The usual case for reformation of a deed arises when the grantee, rather than the grantor, is seeking relief. In such cases, if a mistake in the deed's description occurs in a series of conveyances, under circumstances that would entitle any one of the grantees to a reformation as against the immediate grantor, equity will work back through all and give the last grantee a right of reformation against the grantor inaugurating the mistake. 5 Pomeroy Eq. Jur. (4th ed.) §2099. See, also, Anno. 89 A.L.R. 1444; 44 A.L.R. 78. If such relief is available to a grantee, it ought likewise to be available to a grantor. Wachovia Bank & Trust Co. vs. Jones, 166 Ga. 747, 144 S.E. 256. Therefore, the deed from the Mataraasos to Mrs. Mastriano is reformed in identically the same as is Mrs. Scinto's deed to the Matarassos. From the facts found, it is apparent that Mrs. Mastriano has committed a trespass on Mrs. Scinto's land, for which judgment may enter that she recover $1 damages. A mandatory injunction may also issue requiring Mrs. Mastriano to remove the wall and fence erected by her just southerly of the two dwelling houses on plot No. 2. Costs shall be taxed in favor of the plaintiff against the defendant, Mrs. Mastriano, but none shall be taxed against the defendants Matara^o.

Memorandum of decision on demurrer. O'SULLIVAN, J. This is a companion case to No. 62484, Perlstein, Admx. vs. Westport Sanitarium Company , wherein the plaintiff, in a representative capacity, seeks damages for the death of her decedent on the theory of (1) breach of contract; (2) negligence; and (3) fraudulent representations. A demurrer addressed to each cause of action in that case has recently been sustained. The present case relies on substantially the same set of facts alleged in the companion case. It is in two counts. The first may be summarized by saying that it alleges that the plaintiff entered into a contract with the defendant whereby the latter undertook, for compensation, to safeguard her husband from committing suicide; that the defendant breached this contract in as much as the patient hanged himself while in the defendant's sanitarium; and that by this breach, the plaintiff has been damaged to the extent of the funeral expenses which she paid and to that arising from the loss of support and consortium to which she' was entitled from her husband. The second count alleges that by reason of false representations made by the defendant, she was induced to commit her husband to its care; that he thereafter committed suicide and that by reason of the fraud practiced on her, she has been damaged in the same manner as is set forth in the first count. The prayer for relief seeks $50,000 damages. To each count, the defendant has demurred, that to the first count reading as follows: The defendant demurs, because: "1. No action lies at common law for damages resulting from the death of a human being. "2. An action, for damages resulting from death due to breach of contract does not survive to this -plaintiff. "3. No action lies for damages resulting from death due to breach of contract. "4. Said action is within the provisions of 1680c of the General Statutes [Cum. Supp. 1935] and was not brought within one year from the date of the act or omission complained of. "5. It fails to state a cause of action." The demurrer to the second count is of similar import, although it substitutes the words "fraudulent representations" for "breach of contract" wherever the latter appears. What is said with reference to the demurrer to the first count is •equally applicable to that addressed to the second. The fifth ground may be ignored as it is general in form. The fourth ground is. based on this statute: Sec. 1680c. No action to recover damages for injury to the person.... caused by. . .malpractice of a... .sanatorium, shall be brought but within one yearv from the date of the act'or omission complained of. While the defendant calls itself a sanitarium, it falls within the word "sanatorium" in the statute, for the words are practically synonymous. The statute, however, is not applicable to an action based on either breach of contract or fraud. It refers entirely to malpractice, • which is a form of negligence. Even if the breach of .contract occurred because of malpractice, or if the latter was interwoven in the events that occurred after the fraudulent representations were made, the form of action must govern. The fourth ground is overruled. The first, second and third grounds give the impression that the pleader views the complaint in a different light than do I. The plaintiff is not seeking to recover for the death of her husband. Pier objective is to recover damages for the injuries she sustained. Nowhere does it appear that damages for death are sought. She states her damages to be those' arising from loss of consortium and support, as well as that caused by her paying the funeral expenses of her husband's burial. The death of Perlstein is relied on, not as an element of damage, but to establish that the contract was breached in the one count, and in the other, that the fraud injured the plaintiff. Had the defendant demurred on the ground that Connecticut law does not permit a recovery of such damage as is claimed, a different situation would have been presented. The first three grounds do not attack either count successfully. Accordingly, the demurrer is overruled. Ante.

The plaintiff's petition for certification for appeal from the Appellate Court, 32 Conn. App. 636 (AC 11750), is denied.

The defendants' petition for certification for appeal from the Appellate Court, 32 Conn. App. 595 (AC 11484), is granted, limited to the following issue: "Was the Appellate Court correct in deciding that scope of employment under General Statutes § 31-275 includes a domestic preparatory activity where the commissioner had concluded that the sole reason the decedent was shoveling snow in his driveway was to enable him to exit his driveway to visit customers?" The Supreme Court docket number is SC 14848. Decided October 5, 1993 Scott Wilson Williams, in support of the petition. Robert R. Sheldon, in opposition.

Callahan, J. This appeal concerns several issues arising from the trial of the defendant, Robert Cooper. The defendant was charged in a substitute information and convicted, after a jury trial, of the crime of murder in violation of General Statutes § oSa-oAa, in connection with the March 30,1988 homicide of the victim, Dwight Barnes, in the Charter Oak Terrace area in Hartford. The defendant was sentenced by the trial court to a term of imprisonment of thirty years. He appeals directly to this court pursuant to General Statutes § 51-199 (b) (8). On appeal, the defendant claims that the trial court improperly: (1) allowed the state to introduce evidence of his possession of marijuana on a date some two months prior to the homicide; (2) permitted irrelevant prejudicial testimony during the state's cross-examination of his girlfriend, Harriet Thompson; (3) allowed the state to impeach a defense witness with a 1964 felony conviction; (4) allowed the state to comment, in final argument, regarding the defendant's failure to make a written statement; and (5) instructed the jury concerning specific intent. We reject each of these claims. The transcript of the defendant's trial reveals the following. Midday on March 30,1988, the victim, Leonard Gaston, Kendell Jones, Jarez Sanders and others were gathered near a dumpster in a parking lot in a known drug dealing area called "the block" located off Delta Street in the Charter Oak Terrace area in Hartford. At that time, some of those gathered discussed the possibility of robbing the defendant, who was not from the neighborhood, but who was there going from car to car asking the occupants if they wished to purchase drugs. Gaston, who was acquainted with the defendant, confronted him and asked why he was in the neighborhood. The defendant replied that he was selling drugs for a person named "Pinochle." Gaston asked him to leave the area but the defendant refused. The victim then approached the defendant and offered to purchase two bags of marijuana. In return for the two bags of marijuana, the victim paid the defendant $10. The victim then asked the defendant if he had any cocaine. The defendant responded by handing the victim a plastic bag containing a substance that resembled cocaine. The victim, however, did not appear to deliver any money to the defendant in return for the bag. The victim and the defendant then argued about the defendant selling drugs in "the block." As the victim turned and appeared to be walking away from the argument, the defendant grabbed him by the arm and the two men engaged in a scuffle. Jones and Sanders intervened to assist the victim, who had an injured leg and a cast on his right arm. The victim, while struggling with the defendant, shouted that the defendant had a gun, whereupon Jones and Sanders fled and hid behind a nearby dumpster. Gaston then ran to where the two men were fighting and attempted to wrest the gun from the defendant. The defendant, however, broke free, and, according to Jones, Sanders and Gaston, approached the victim, deliberately pointed the gun at his head and shot him. The defendant then ran toward the Park River where he was subsequently apprehended by the police. The next day, the police recovered from the river the gun that had been used to shoot the victim. There were two spent shells in the cylinder. At trial, Officer Daniel Zak of the Hartford police department testified that he and his partner had responded to the scene of the shooting. Zak testified that he had pursued and apprehended the defendant, who had fled toward the river carrying a long barreled revolver. Moments after Zak had apprehended the defendant, Officer Jose Sanchez arrived and assisted in the defendant's capture and handcuffed him. Both officers testified that the defendant had no revolver on his person when he was apprehended. At the Hartford police station, Officer Nicholas Russo and another Hartford police officer interviewed the defendant after reading him Miranda warnings. The defendant told Russo that he had been attacked by a group of seven to nine black males who had beaten him to the ground. Russo testified that the defendant had told him that while he was being beaten he had noticed a gun on the ground, had picked it up, and, as he was attempting to get to his feet, the gun had accidentally discharged and the bullet had struck one of his assailants. He also said that the gun had discharged again while he was running from the scene and that he had thrown the gun in between two houses. Neither San chez nor Russo saw any cuts, bruises or swelling on the defendant when he had been apprehended or when he had been interviewed. Three eyewitnesses to the shooting, Gaston, Sanders and Jones, testified at the defendant's trial. Gaston and Jones both testified that the defendant had not been knocked to the ground during the altercation. All three testified that the defendant had deliberately aimed the gun at the victim's head and shot him. Gaston and Sanders also stated that they had previously seen a man whom they knew only as "Pinochle" with the same gun that the defendant had used to shoot the victim. Pinochle was the brother of the defendant's girlfriend and the person for whom the defendant said he had been selling drugs at the time of the homicide. Although the defendant did not testify at his trial, he called several witnesses on his behalf. A resident of the Charter Oak Terrace area, Eddie Bowman, testified that he had seen the defendant on the ground during the fight but that he had not seen a gun, nor had he witnessed the shooting. He also testified that he had previously seen Pinochle with a long barreled .22 caliber revolver but that Pinochle had sold the gun. Another defense witness, Raymond Vail, testified that he had observed the fight and had seen the defendant beaten to the ground. He also said that he had not seen a gun and that, although he had heard a shot, he had not seen the shooting. Vail admitted that he had waited two years to come forward with his account of the incident. I The defendant initially claims that he is entitled to a new trial because the trial court improperly permitted the state to introduce evidence, over his objection, of his arrest for possession of marijuana at a time two months prior to the date of the shooting. He argues that his previous possession of marijuana was irrelevant to the crime charged because it did not provide a motive for the shooting of the victim and was not indicative of drug dealing or the likelihood of his having possessed a weapon on the date of the incident, the ostensible reasons for which it had been admitted. At trial, the state sought to present testimony that on a previous occasion the defendant had been apprehended by the police while in possession of $83 in currency and ten plastic bags containing marijuana. The trial court, after hearing arguments concerning the defendant's objection to the admissibility of the proffered testimony, allowed it into evidence. Hartford police officer Christopher Lyons then testified that on January 28, 1988, he had arrested the defendant for the possession of ten bags containing marijuana. Lyons stated that in January, 1988, he had been investigating citizen complaints of marijuana sales and had observed a car being driven by a recognized drug dealer known to have been operating with a suspended operator's license. Lyons testified that he had arrested the operator of the automobile and also the defendant, who was a passenger in the dealer's automobile. The defendant had been arrested because he had in his possession ten plastic bags containing marijuana. Immediately following Lyons' testimony, the trial court delivered a lengthy admonition to the jury informing it that Lyons' testimony had not been admitted to show that the defendant's character was bad or that he had criminal propensities and that it was not to be used for those purposes. The court informed the jury that the testimony was to be used only for the purposes for which it had been admitted, that is, as some evidence relevant to the defendant's motive in shooting the victim, as some evidence that the incident might have been drug related and as some evidence of the likelihood of the defendant's having been armed. The state's position was that Lyons' testimony was relevant for the purposes for which it had been admitted because it corroborated other evidence that the reason for the shooting had been the victim's interference with the defendant's drug selling activity and because it refuted the defendant's statement that the shooting was accidental. The state also claimed that the evidence was not unduly prejudicial because there was other evidence that the defendant had been engaged in the sale of drugs on the day of the shooting. As a general rule, evidence of a defendant's prior crimes or misconduct is not admissible. State v. Crumpton, 202 Conn. 224, 228, 520 A.2d 226 (1987); State v. Geyer, 194 Conn. 1, 5, 480 A.2d 489 (1984). We have, however, recognized exceptions to the general rule if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. State v. Mooney, 218 Conn. 85, 126, 588 A.2d 145, cert. denied, U.S. , 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991); State v. Brown, 199 Conn. 47, 56, 505 A.2d 1225 (1986); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982). "[Prior misconduct] evidence may also be used to corroborate crucial prosecution testimony. United States v. Everett, 825 F.2d 658, 660 (2d Cir. 1987), cert. denied, 484 U.S. 1069, 108 S. Ct. 1035, 98 L. Ed. 2d 999 (1988) . . . ." State v. Santiago, 224 Conn. 325, 338, 618 A.2d 32 (1992); State v. Duntz, 223 Conn. 207, 240, 613 A.2d 224 (1992). Moreover, we have held that such evidence may be used to " 'complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings.' " State v. Brown, supra, 56, quoting C. McCormick, Evidence (3d Ed. 1984) § 190; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 8. To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, we have adopted a two-pronged analysis. State v. Brown, supra, 56. "First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence." State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983); State v. Shindell, 195 Conn. 128, 134, 486 A.2d 637 (1985). The defendant contends that his prior arrest for possession of marijuana was not relevant to prove his subsequent drug involvement, a motive for the shooting of the victim, or the likelihood of his having been armed. He argues that Lyons' testimony was indicative only of a propensity toward criminal behavior, was unduly prejudicial and was not admissible under any exception to the general rule prohibiting such evidence. We disagree. The trial court could reasonably have concluded that the evidence of the defendant's prior misconduct served to corroborate other testimony in the state's case that indicated that the defendant sold drugs and that the victim was shot because he had interfered with the defendant's drug related activity. The court also could reasonably have determined that, because of the circumstances surrounding the defendant's prior possession of ten bags of marijuana, the defendant was not a novice to the drug trade and might possess the predilection of those selling drugs outside familiar territory to carry weapons to protect themselves and their merchandise. The defendant conceded at oral argument in this court that a drug dealer doing business in a strange neighborhood might have a motive to be prepared to take drastic action if someone interfered with him. Although it is a close call, we cannot say that the trial court abused its broad discretion when it concluded that the evidence of the defendant's prior marijuana possession had some probative value in establishing that the shooting on March 30,1988, was drug related. See State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987); State v. Parker, 197 Conn. 595, 601, 500 A.2d 551 (1985). "Evidence is not inadmissible because it is not conclusive; it is admissible if it has a tendency to support a fact relevant to the issues if only in a slight degree. State v. Morrill, 197 Conn. 507, 548, 498 A.2d 76 (1985)." State v. Miller, supra. The next issue to be determined is whether the trial court abused its discretion by admitting the prior misconduct evidence because it was more prejudicial than probative. See State v. Ibraimov, supra, 352. The standard for review is clear. " 'The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court.' State v. Howard, 187 Conn. 681, 684, 447 A.2d 1167 (1982); see also State v. Tucker, 181 Conn. 406, 416, 435 A.2d 986 (1980); State v. McCarthy, 179 Conn. 1, 22, 425 A.2d 924 (1979); State v. Turcio, 178 Conn. 116, 129, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980)." State v. Brown, supra, 56. " '[Ejvery reasonable presumption should be given in favor of the trial court's ruling.' " State v. Shindell, supra, 136; State v. Ryan, 182 Conn. 335, 337, 438 A.2d 107 (1980). " '[Tjhe trial court's decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.' " State v. Braman, supra, 676. " 'The problem is . . . one of balancing the actual relevancy of the "other crimes" evidence in light of the issues and the other evidence available to the prosecution against the degree to which the jury will probably be roused by the evidence.' " Id., 677-78; State v. Holliday, 159 Conn. 169, 173, 268 A.2d 368 (1970). Although some degree of prejudice inevitably accompanies the admission of evidence of a defendant's criminal record or prior misconduct; see State v. Nardini, 187 Conn. 513, 523, 447 A.2d 396 (1982); we believe that, in context, the trial court did not abuse its discretion when it determined that the probative value of the evidence of the defendant's prior misconduct outweighed its prejudicial effect and admitted testimony concerning it over the defendant's objection. At the trial, there was other evidence of the defendant's involvement with drugs and, indeed, evidence concerning drugs permeated the entire proceedings. It is difficult to believe that the evidence of the defendant's prior possession of marijuana, under the circumstances as they unfolded at trial, could have had a tendency to shock or influence the jury or to color the proceedings so as to deprive the defendant of a fair trial. See State v. Artieri, 206 Conn. 81, 88-89, 536 A.2d 567 (1988). Moreover, a single prior incident of misconduct is clearly less prejudicial to a defendant than multiple incidents or convictions. State v. Crumpton, supra, 230. The potential for prejudice is also reduced when the prior misconduct is dissimilar to the crime charged. State v. Santiago, supra, 340. Further, any prejudicial effect of the prior misconduct evidence was minimized by the trial court's instructions to the jury limiting the purposes for which the evidence could be considered. State v. Brown, supra, 58; State v. Shindell, supra, 137-38; State v. Howard, supra, 684. Accordingly, we reject the defendant's claim that the trial court abused its discretion in admitting testimony concerning his prior misconduct. II The defendant next claims that during the cross-examination of Harriet Thompson, a defense witness, the trial court improperly permitted the state, over his objection, to go beyond the scope of the direct examination. He claims consequently that "extraneous" evidence was injected into the trial concerning prior acts of misconduct not only of the defendant but also of Hubert Thompson, also known as "Pinochle," the witness' brother. The defendant maintains that the trial court's incorrect ruling deprived him of his state and federal constitutional rights to a fair trial. We disagree. At trial, Thompson testified on direct examination that she was the defendant's girlfriend, that she had been with him at her home the night before the shooting and that she had sent him out for breakfast the morning of the shooting. She also testified that Pinochle is her brother and consequently that she knows him well even though she sees him only about once a month. She further testified that she had never seen her brother or the defendant with a gun. On cross-examination, however, Thompson admitted that she did not know what her brother's occupation was or whether he sold drugs for a living. She also testified in response to cross-examination that she was unaware that her brother had been arrested for possession of narcotics in 1990 and had been found in possession of .22 caliber ammunition in 1987. Further, she admitted on cross-examination that she was not aware that her brother had been convicted as a result of an incident involving an armed robbery in 1984 and had been sentenced to prison. When the state attempted to question Thompson concerning the nature and extent of her knowledge of the defendant, the defendant objected and the jury was excused. Outside the presence of the jury, the defendant argued that the testimony would be irrelevant, prejudicial and beyond the scope of the direct examination. The state conceded that its inquiries would, in fact, touch on past misconduct by the defendant but were proper to cast doubt on Thompson's credibility. The court then allowed the state to make inquiry of Thompson before the jury concerning the extent of her knowledge of the defendant. Thereafter, Thompson, who maintained that the defendant was her boyfriend and that she had known him well for more than two years prior to the shooting, answered, in response to the state's cross-examination, that she did not know whether the defendant had a job in March, 1988. She also responded that she was unaware that the defendant had been arrested two months prior to the date of the shooting for possession of marijuana. " Tt is well settled that our rule restricts cross-examination to matters covered in the direct examination, except as they involve credibility alone.' " State v. Ireland, 218 Conn. 447, 452, 590 A.2d 106 (1991), quoting State v. Sharpe, 195 Conn. 651, 657, 491 A.2d 345 (1985); State v. Zdanis, 173 Conn. 189, 195, 377 A.2d 275 (1977). The trial court is, however, granted broad discretion in determining the scope of cross-examination. State v. Hernandez, 224 Conn. 196, 208, 618 A.2d 494 (1992); State v. Jackson, 198 Conn. 314, 319, 502 A.2d 865 (1986); State v. Sharpe, supra. The record indicates that the state's cross-examination did not impermissibly exceed the scope of Thompson's direct examination. The subject of the witness' relationships with the defendant and with her brother was raised on direct examination. The state simply explored those same areas in more depth on cross-examination to ascertain the basis and extent of Thompson's knowledge of the two men, to permit the jury to gauge the accuracy of her testimony. State v. Williamson, 206 Conn. 685, 699, 539 A.2d 561 (1988). "Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject." State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986); State v. Hernandez, supra, 206. Because Thompson had testified on direct examination that she had never seen her brother with a gun, it was proper to allow the state to question her on cross-examination as to whether she was aware that her brother had been arrested while in possession of ammunition and for armed robbery. "The party who initiates discussion on the issue is said to have 'opened the door' to rebuttal by the opposing party." State v. Graham, supra. Moreover, Thompson had depicted herself as someone who knew the defendant and Pinochle well. Thompson, however, admitted on cross-examination that she did not know what either of them did for a living or that either of them had been arrested. Those gaps in her knowledge could reasonably have been expected to give the jury pause concerning the reliability of her testimony on direct examination. If a question is designed to " 'rebut, impeach, modify, or explain' " direct testimony, it is within the scope of the direct examination. State v. Sharpe, supra, 657; State v. Zdanis, supra, 196. The state's inquiries on cross-examination, designed to impeach Thompson's direct testimony by questioning the extent of her knowledge of the subjects to which she had testified, were proper questions on cross-examination and the trial court did not abuse its broad discretion by allowing them. III The defendant next claims that the trial court improperly permitted the state to impeach Raymond Vail, a defense witness, with a 1964 conviction for breaking and entering with criminal intent. He contends that the prejudicial effect of Vail's prior conviction outweighed any possible probative value on the issue of his credibility because of its remoteness in time. The defendant also claims that the trial court improperly allowed evidence of Vail's prior conviction because the court failed to exercise its discretion, as required by State v. Nardini, supra, 523, to determine its admissibility. He argues that Vail's testimony, if unimpeached, might have raised a reasonable doubt of his guilt and resulted in his acquittal. He claims that consequently he is entitled to a new trial. The trial court, outside the jury's presence, heard arguments relating to the remoteness of Vail's 1964 conviction and concluded that evidence of the conviction was admissible on the issue of Vail's credibility. Vail was thereafter questioned briefly on cross-exami nation concerning his 1964 conviction. Subsequently, to rehabilitate Vail, he was queried on redirect examination by the defendant concerning his age at the time of the incident. The defendant first argues that the trial court failed to weigh the probative value of Vail's 1964 conviction against its prejudicial effect as required by State v. Nardini, supra, before admitting the conviction into evidence. He claims that the court simply decided that the remoteness of the conviction went to its weight and not to its admissibility and routinely allowed the evidence, as the trial court had done in State v. Robing- ton, 137 Conn. 140, 145, 75 A.2d 394 (1950), a case decided before Nardini that required a balancing of prejudice and probative value. We disagree. Nardini was the only case cited as pertinent during oral argument concerning this issue in the trial court. Robington was not mentioned and we have no reason to believe that the trial court utilized that test to arrive at its decision. "We do not presume error; the trial court's ruling is entitled to the reasonable presumption that it is correct unless the party challenging the ruling has satisfied its burden demonstrating the contrary." State v. Crumpton, supra, 231. The record makes it abundantly clear that the trial court was aware of its obligation under Nardini to "evaluate the prejudicial tendency of the conviction against the probative value. Absent a clear indication that the court did not apply this standard, we conclude that the trial court applied the correct legal standard." State v. Crumpton, supra, 232. The defendant also claims that even if the court did exercise its discretion as required by Nardini, it did so improperly. We disagree. At common law, anyone who had been convicted of a felony, a misdemeanor involving dishonesty, or crimes relating to the obstruction of justice, was disqualified from testifying at a trial. State v. Geyer, 194 Conn. 1, 10, 480 A.2d 489 (1984). General Statutes § 52-145 now allows persons so convicted to testify but also permits the conviction of a crime to be shown for the purpose of affecting credibility. We have generally recognized three primary fac tors to be considered in determining when a criminal conviction may be admitted to affect credibility: "(1) the extent of the prejudice likely to arise; (2) the significance of the commission of the particular crime in indicating untruthfulness; and (3) its remoteness in time." State v. Nardini, supra, 522; State v. Pinnock, 220 Conn. 765, 779-80, 601 A.2d 521 (1992); see also Heating Acceptance Corporation v. Patterson, 152 Conn. 467, 471-72, 208 A.2d 341 (1965). In this instance, we conclude that the prejudice that resulted from the admission of the evidence of Vail's prior conviction was minimal. Although the trial court always has the responsibility to consider the potential prejudice stemming from the impeachment of any witness with evidence of conviction of a crime, the extent of prejudice to the defendant is considerably lessened when the witness impeached is not the defendant himself. State v. Pinnock, supra, 780-81. "[T]he danger of unfair prejudice is far greater when the accused, as opposed to other witnesses, testifies, because the jury may be prejudiced not merely on the question of credibility but also on the ultimate question of guilt or innocence." (Internal quotation marks omitted.) Id. Also, the court's instructions to the jury lessened any prejudicial effect of the evidence by reminding the jury that it was not required to disbelieve a witness because of a prior conviction. Furthermore, the remoteness in time of Vail's conviction was emphasized by the defendant on redirect examination and in closing arguments, diminishing its importance. The second factor to be considered is the requirement that the prior crime used for impeachment purposes must have significant relevance to the truthfulness of the witness. We have consistently "recognized that crimes involving larcenous intent imply a general disposition toward dishonesty or a tendency to make false statements." State v. Crumpton, supra, 229; State v. Geyer, supra, 12. "[Breaking and entering with criminal intent [is] a crime . . . associated with larceny and, therefore, implying dishonesty in the general sense" directly affecting the credibility of the witness. State v. Nardini, supra, 526; State v. Crumpton, supra. Finally, we note that the trial court, in its ruminations on the admissibility of Vail's conviction, remarked, and we agree, that the conviction was "quite remote" and that it stretched the limits of admissibility. Remoteness, however, is only one of the factors to be considered. In Nardini, we recognized that "convictions having some special significance upon the issue of veracity surmount the standard bar of ten years and qualify for the balancing of probative value against prejudice." State v. Nardini, supra, 526 (twenty year old conviction for breaking and entering with criminal intent properly admitted). We cannot say that the trial court, in this instance, after reflecting on the issue of probative value versus prejudice, abused its discretion when it decided to admit Vail's conviction for impeachment purposes despite its age. Furthermore, we disagree with the defendant's argument that Vail's testimony was crucial and that the outcome of his trial would have been different had Vail's testimony not been impeached by his conviction. Vail's testimony served only to corroborate the defendant's statement that he had been attacked and knocked to the ground. Another witness also testified that he had seen the defendant on the ground being beaten during the altercation. Moreover, Vail did not see the shooting and consequently could not testify that the victim had been shot accidentally as the defendant contended. His testimony, therefore, would not have refuted that of the three eyewitnesses for the state who testified that they saw the shooting and that it was deliberate. The admission of Vail's conviction to impeach his testimony, therefore, even if incorrect, was harmless. This claim of the defendant is meritless. IV The defendant next claims that his constitutional rights to due process and against compelled self-incrimination were violated by the state's reference in its final argument to his refusal to give a written statement at Hartford police headquarters following his arrest. He contends that the state, in so arguing, violated the doctrine expressed in Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), which proscribes the use of a defendant's silence to create an unfavorable inference of guilt. Because this claim was not preserved at trial, the defendant seeks to prevail under Stale v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). As previously noted, Officer Nicholas Russo testified that he and another officer had interviewed the defendant at Hartford police headquarters following his arrest. Russo stated that at that time the defendant had been anxious to talk and had attempted to relate his version of the incident before Russo had an opportunity to inform him of his rights. When Russo read the defendant his Miranda rights, Russo emphasized to the defendant that he had a right to remain silent and that he had a right to have an attorney present during questioning. The defendant responded that he understood his rights but that he wished to give his account of what had occurred. The defendant stated to Russo that he had been attacked by a group of seven to nine black males and beaten to the ground. While on the ground, he noticed a gun and grabbed it. As he began to get up, the gun accidentally discharged, and the bullet struck one of his attackers. He also said that, thereafter, as he was running away, the gun had discharged again and that he had thrown it between two houses as he ran toward the river. The defendant, however, refused to give a written statement or to sign any statement without an attorney being present. Russo thereupon terminated the interview. During final argument, the state referred to the defendant's refusal to give a written statement when interviewed by Russo. The state remarked, "Why not? If it's the truth, put it in writing." The defendant did not object immediately but waited until the state had completed its argument and the jury had been excused. He then objected, arguing that the state had misused the exercise of his Miranda rights in order to create an inference of guilt. He asked the court to strike all the state's remarks concerning his refusal to give or sign a written statement. In response, the state, "in order to avoid problems on appeal," offered to withdraw its remarks to the jury, despite its expressed opinion that the defendant had effectively waived all his Miranda rights. The court then recalled the jury and the state informed the jury that it was withdrawing its remarks concerning the defendant's refusal to give a written statement. The state told the jury not to "consider [its remarks] in any way as evidence of the defendant's guilt." The defendant agreed to this procedure and did not request any further remedy. During his final argument, moreover, the defendant reminded the jury of the withdrawal by the state of the questioned portion of its argument. The trial court thereafter, during its charge to the jury, gave a specific curative instruction, enjoining the jurors from considering the state's remarks regarding the defendant's refusal to give a written statement. The defend ant did not object to the procedures employed to ameliorate any possible improper inference that the jury might have drawn from the state's remarks. Pursuant to State v. Golding, supra, 239-40, a defendant may prevail on an unpreserved claim of constitutional error only by meeting all of the following conditions: "(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived,the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." State v. Marra, 222 Conn. 506, 527, 610 A.2d 1113 (1992). In harmony with the objective of Golding, the defendant's claim may be disposed of "by focusing on whichever condition is most relevant in the particular circumstances." State v. Golding, supra, 240; State v. Pinnock, supra, 778. The defendant argues that he was deprived of a fair trial by the state's violation of the rule established by the United States Supreme Court in Doyle, prohibiting the use of a defendant's silence after the advisement of Miranda rights to imply guilt or to indicate a consciousness of guilt. Doyle v. Ohio, supra, 618. He contends that he had invoked the fifth amendment by refusing to give a written statement without an attorney and that such decision on his part could not be used against him at trial. He claims that, although the state withdrew its reference to his refusal to give a written statement and the court delivered a curative instruction, the harm caused by the state's argument was not vitiated. The state argues that no constitutional violation exists because when the defendant objected to the state's remarks, the jury was recalled and the state withdrew that portion of the closing argument to which the defendant had objected. Moreover, the defendant in his closing argument reminded the jury that the state's remarks concerning the defendant's refusal to give a written statement had been withdrawn and were not to be considered. In addition, the trial court gave a curative instruction in which it ordered the jury to disregard the state's argument. "[JJurors are presumed to follow the instructions given by the judge." State v. Williams, 202 Conn. 349, 363-64, 521 A.2d 150 (1987); State v. Barber, 173 Conn. 153, 156, 376 A.2d 1108 (1977). Further, after his initial objection, the defendant voiced no further challenge to the state's argument or manifested any disapproval of the steps taken to cure any possible harm occasioned by it. Assuming that the disputed argument when made constituted a Doyle violation, the argument was withdrawn by the state and subsequently charged out of the case by the trial court apparently with the approbation of the defendant. Under such circumstances, it can hardly be said that a constitutional violation clearly existed and clearly deprived the defendant of a fair trial. The defendant, pursuant to the third prong of Golding, cannot prevail on this claim. The defendant also claims that the state's remarks constituted such egregious prosecutorial misconduct that the trial court should have declared a mistrial sua sponte. This claim is without merit. "The trial court has great latitude in ruling on motions for mistrial. State v. Nowakowski, 188 Conn. 620, 624, 452 A.2d 938 (1982); State v. Perez, 181 Conn. 299, 310, 435 A.2d 334 (1980)." Holbrook v. Casazza, 204 Conn. 336, 355, 528 A.2d 774 (1987), cert. denied, 484 U.S. 1006, 108 S. Ct. 699, 98 L. Ed. 2d 651 (1988). "The general rule is that a mistrial is granted only where it is apparent to the court that, as a result of some occurrence dur ing trial, a party has been deprived of the opportunity for a fair trial. State v. Gaston, 198 Conn. 490, 495, 503 A.2d 1157 (1986); State v. DeMatteo, 186 Conn. 696, 703, 443 A.2d 915 (1982)." Id., 356. In this case, we cannot say that it should have been apparent to the trial court that the state's remarks, tempered as they were by the state's withdrawal of those remarks and the trial court's curative instruction, to neither of which the defendant objected, deprived the defendant of the opportunity for a fair trial. It certainly was not apparent to the defendant, who did not make a motion for a mistrial. The court did not abuse its broad discretion by not declaring a mistrial sua sponte. State v. Smith, 200 Conn. 544, 548, 512 A.2d 884 (1986); State v. Fleming, 198 Conn. 255, 264, 502 A.2d 866 (1986). V The defendant's final claim is that a supplemental instruction delivered by the trial court unconstitutionally allowed the jury to presume the existence of a specific intent to kill on the part of the defendant, thus violating the edict of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). The supplemental instruction was given when the court was requested by the jury to redefine and reexplain "intent." In its supplemental instruction, the court, in order to highlight the difference between intent and premeditation, gave the example of a novice skier skiing down a mountain and suddenly being confronted with the choice of traversing a dangerous slope or taking an easier trail. The court explained that the skier, without the time or opportunity for premeditation as to his course of action, could instantaneously form an intent to take a particular trail. The defendant argues that the court's instruction was incorrect and unconstitutional because it blurred the distinction between mens rea and actus reus, detracted from the reasonable doubt standard and shifted the burden of proof to the defendant to demonstrate the lack of a specific intent to kill. Because this claim was not preserved at trial, the defendant seeks to prevail under State v. Golding, supra, 239-40. " 'In Sandstrom v. Montana, supra, 517-24, the United States Supreme Court held that a jury instruction that "the law presumes that a person intends the ordinary consequences of his voluntary acts" violated the defendant's due process rights because a reasonable jury could have interpreted the instruction as a conclusive or burden-shifting presumption and thus relieved the state of its burden of proving every element of the crime. See Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985); United States v. United States Gypsum Co., 438 U.S. 422, 98 S. Ct. 2864, 57 L. Ed. 2d 854 (1978); Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975).... We have, however, recognized that the rule of Sandstrom must not be oversimplified. State v. Mason, 186 Conn. 574, 582-83, 442 A.2d 1335 (1982); State v. Pina, 186 Conn. 261, 263, 440 A.2d 967 (1982). Sandstrom does not invalidate, for example, the use of an "entirely permissive inference or presumption, which allows—but does not require—the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant." Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979); see State v. Fernandez, 198 Conn. 1, 20, 501 A.2d 1195 (1985); State v. Arroyo, 180 Conn. 171, 175, 429 A.2d 457 (1980). "A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion." ' State v. Amarillo, 198 Conn. 285, 300-302, 503 A.2d 146 (1986); see also State v. Shine, 193 Conn. 632, 644-45, 479 A.2d 218 (1984); State v. Johnson, 185 Conn. 163, 167-69, 440 A.2d 858, affd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983); State v. Vasquez, 182 Conn. 242, 246-48, 438 A.2d 424 (1980)." State v. Palmer, 206 Conn. 40, 47-48, 536 A.2d 936 (1988). Although the giving of examples sometimes causes problems; United States v. Pinkney, 551 F.2d 1241, 1244 (D.C. Cir. 1976); State v. DelVecchio, 191 Conn. 412, 417-22, 464 A.2d 813 (1983); we fail to see how the example given by the trial court resulted in any of the possible dire consequences attributed to it by the defendant. The example given, in the context of the jury instructions as a whole, simply distinguished "intent" from "premeditation" and illustrated for the jury that, although the defendant's intent to kill had to be proven by the state beyond a reasonable doubt, that intent could be formed instantaneously and did not require any specific period of time for thought or "premeditation" for its formation. In the context of the entire charge, the jury could not have misunderstood the court's supplemental instruction to do anything other than distinguish "intent" from "premeditation." Throughout its instructions the court repeatedly stressed the state's obligation to prove the defendant's intent to kill beyond a reasonable doubt in order to obtain a murder conviction. It is inconceivable that the "skier" example given by the trial court somehow diluted that obligation that the court had so stressed. "It is well established that individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge." State v. Palmer, supra, 46; Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); State v. Crafts, 226 Conn. 237, 249, 627 A.2d 877 (1993); State v. Silano, 204 Conn. 769, 773, 529 A.2d 1283 (1987). We conclude that the example given by the trial court to explain to the jury the distinction between "intent" and "premeditation" did not permit the jury to entertain a conclusive presumption concerning the defendant's intent to kill from the consequences of his actions. Nor did it "blur the distinction" between mens rea and actus reus as claimed by the defendant. The defendant consequently has failed to demonstrate that the example given by the court constituted a clear constitutional violation. He therefore cannot prevail on his unpreserved claim of error under the third prong of Golding. The judgment is affirmed. In this opinion Peters, C. J., Borden and Norcott, Js., concurred. General Statutes § 53a-54a provides in relevant part: "murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . ." General Statutes § 51-199 (b) provides in relevant part: "The following matters shall be taken directly to the supreme court . . . (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years . . . ." Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Lieutenant Timothy Hogan of the Hartford police department testified as an expert witness that there are defined drug territories in the city of Hartford and that it is likely that a person attempting to sell drugs outside his own territory would carry a weapon for protection. There is a well established correlation between drug dealing and firearms. United States v. Simon, 767 F.2d 524, 527 (8th Cir. 1985); United States v. Milham, 590 F.2d 717, 721 (8th Cir. 1979). The trial court did not allow into evidence testimony concerning two other acts of misconduct by the defendant involving alleged drug dealing that took place subsequent to March 30, 1988, the day of the shooting, while the defendant was out on bond on this charge of murder. The defendant made no constitutional claim at trial concerning Harriet Thompson's cross-examination, and does not, in his brief, seek review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We consequently will review his claim as one of an incorrect evidentiary ruling by the trial court, which is its proper classification in any event. The following colloquy occurred: "[The State:] And would you say that you knew your brother pretty well? "[Harriet Thompson:] Yes, I did. "Q. At that time? "A. Yes. "Q. Okay. And what occupation did he have? "A. Excuse me? I don't understand. "Q. What kind of job did he do? "A. I wouldn't know. "Q. You didn't know what kind of— "A. No, I didn't. "Q. —job he had? "A. No. "Q. Did he have a job? "A. I don't know. "Q. And would you agree that at the time he was making a living selling drugs? "A. I don't know." Harriet Thompson further testified: "[The State:] Would it be correct to say you were unaware that your brother participated in a robbery in April of 1984 of a car of people who had lost their way in Charter Oak Terrace and that he held a silver colored handgun to the head of a woman who was an occupant of that vehicle? You didn't know that? "[Harriet Thompson:] I didn't know anything about it. "Q. You didn't know anything about that? "A. No, I didn't. "Q. You didn't know that your brother pleaded guilty to that crime and received a six year prison term suspended after four years? "A. No. "Q. Did you know your brother went to prison? "A. No, I didn't. "Q. You didn't know that? "A. Nope. "Q. And is it then your testimony that as far as you know your brother Pinochle, Hubert Thompson, never went to prison as a result of an incident and arrest that occurred in 1984? "A. Yep. "Q. All right. But you knew your brother pretty well? "A. Yes, I did." The following colloquy occurred: "[The State:] Miss Thompson, I think before we left you testified that— is it correct to say you know the defendant well? "[Harriet Thompson:] Yes. "Q. I beg your pardon? "A. Yes. "Q. Yes. And do you know if he had a job in March of 1988? "A. No, I don't. "Q. You don't know whether he had one? "A. No, I don't know whether he had one or not. "Q. Is it possible that he did? "A. I don't know." Vail testified on cross-examination as follows: "[The State:] You were not convicted of breaking and entering in 1964 as a result of an incident that you were arrested on? "[Raymond Vail:] Yes, I was. I was convicted. I was put on probation. "Q. All right. You were convicted of breaking and entering in 1964? "A. Right. "Q. And you pled guilty? "A. I pled guilty because, like I say— "Q. Just answer the question if you could sir. Did you plead guilty? "A. I didn't commit the crime. I pleaded guilty. "Q. I would like to know, did you plead guilty? "A. Yes. "Q. Okay. And it involved you entering a laundromat. "A. Right. "Q. Is that correct? "A. Yes. "Q. And being found in possession of burglary tools? "A. I didn't have no burglary tools on me, but it was a screwdriver and a wrench that was already there. "Q. All right. And you were charged—that breaking and entering was based on you breaking in—the charge was that you broke in to steal the money from the laundromat? "A. Right. No machines was touched. "Q. Thank you, sir. Nothing further." Vail testified on redirect examination as follows: "[Defense Counsel:] How old are you today? How old are you now? "[Raymond Vail:] Forty-two. "Q. Okay. And 1964 is twenty-six years ago. "A. Right. "Q. How old were you in 1964? My math is terrible. "A. I think I was seventeen, eighteen." "[General Statutes] Sec. 52-145. certain witnesses not disqualified. credibility, (a) A person shall not be disqualified as a witness in any action because of, (1) his interest in the outcome of the action as a party or otherwise, (2) his disbelief in the existence of a supreme being, or (3) his conviction of crime. "(b) A person's interest in the outcome of the action or his conviction of crime may be shown for the purpose of affecting his credibility." The witness, Eddie Bowman, testified that he saw the defendant involved in a fight with Jones, Barnes and Sanders and that Sanders had been hitting the defendant who was on the ground. Russo testified: "We went into the room. We introduced ourselves as detectives so he knew—because [we] were in plain clothes—so he knew who he was talking to. Mr. Cooper started to talk to us, at which time we told him to stop, that we had to go through some procedures first before we talked to him. I always carry—it is a blue card. And it has your constitutional rights on it. I took the card from my wallet. I read the rights to Mr. Cooper. And Mr. Cooper was asked by myself if he understood what I was reading to him, that he didn't talk—he didn't have to talk to the police at this time." During direct testimony, Russo was asked whether the defendant used the word "accident." "To my recollection he never said 'accident.' Those were the two . . . ['the two things he kept conveying over and over again. That it wasn't his fault and he didn't mean to do it'], the two ways he described it." The gun was actually retrieved the following day in the river near the spot where the defendant had been apprehended. Russo testified: "I asked Mr. Cooper would he be willing to give a written statement or put what he had told me into writing, at which time Mr. Cooper said no, he didn't; he didn't wish to give a written statement, that he wasn't going to sign anything without a lawyer present." The assistant state's attorney stated: "Ladies and gentlemen, I want to address you to withdraw an argument that I did make. And that was you recall when the defendant first gave his statement to the police orally he was asked if he would commit it to writing and he said that he would not. He also requested a lawyer at that time. And I argued would an innocent man do that. I will withdraw that argument. The reason being that the defendant asked for a lawyer. And it may well be that that's the only reason why he didn't commit the statement to writing. And because we want to approach this case as fairly as possible from every avenue, it's the state's view that you ought not to consider that in any way as evidence of the defendant's guilt." The court stated: "I inform you that that was the defendant's basic fundamental constitutional right, the right to confer with an attorney on any matter, particularly an important matter such as giving a written statement to be signed. That was his right. And it is indeed an important, precious, fundamental right enjoyed by all citizens . Certainly no inference unfavorable to the accused Robert Cooper is to be drawn from the exercise of that basic right. No inference negative or adverse or unfavorable to Mr. Cooper is to be drawn by you, as the jury, from the evidence that Mr. Cooper stated he would not give a written statement or sign such statement without the opportunity to confer with his attorney. Simply put, that was his basic fundamental right. The fact that he exercised it cannot in any way be used or held against him. That he exercised that basic fundamental right is not to be considered by you as any indication of guilt whatsoever."

The defendant's petition for certification for appeal from the Appellate Court, 31 Conn. App. 923 (AC 10760), is granted, limited to the following issues: "1. Was the Appellate Court correct in concluding the defendant's rights were not violated by an instruc tion defining reasonable doubt as 'a doubt for which no valid reason can be assigned . . . such a doubt as in serious affairs which concern you in everyday life you would pay some strict attention to' and by an instructional caveat limiting the presumption of innocence to protecting] the innocent and not the guilty? The Supreme Court docket number is SC 14808. Decided July 30, 1993 Elizabeth M. Inkster, assistant public defender, in support of the petition. Judith Rossi, assistant state's attorney, in opposition. "2. Was the May 17, 1991 panel of venirepersons summoned in a manner that violated the defendant's constitutional right to a jury selected from a fair cross section of the community? "It is further ordered that the matter be remanded to the trial court for an evidentiary hearing and written findings on the following factual issues: On May 15,1991, were additional venirepersons selected in the case of State v. Webb, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CR 89 371150 (September 12, 1991), on a nonrandom, racial basis in order to make more minority venirepersons available in that case; and if so, did that process result in fewer minority venirepersons available for the May 17,1991 panel of venirepersons in this case? See State v. Ellis, 224 Conn. 711 (1993)."

The state of Connecticut's petition for certification for appeal from the Appellate Court, 32 Conn. App. 217 (AC 10665), is granted, limited to the following issues: "1. Under the facts of this case, did the Appellate Court properly conclude that the trial court's jury instruction regarding sexual assault in the first degree was incorrect because it referred to compelled sexual intercourse by threat of force? "2. If the answer to question 1. is yes, was reversal of the conviction required by (a) the federal due process clause; or (b) the due process clause of article first, § 8, of the Connecticut constitution? "3. Was the Appellate Court correct in failing to consider whether any error in the trial court's instruction was harmless?"

Lavery, J. The defendant, Keith Johnson, appeals from a judgment of conviction rendered after a jury trial. The defendant was convicted of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and 53a-48 (a), assault in the second degree in violation of General Statutes § 53a-60 (a) (2), and received a total effective sentence of twenty-three years. On appeal, the defendant claims that the trial court improperly (1) admitted testimony concerning a pretrial identification of the defendant and (2) denied the motion to sever his trial from those of his codefendants. We affirm the judgment of the trial court. The jury could reasonably have found the following facts. At about 6:45 p.m. on October 12,1989, the victim and a companion were walking on Huntington Street in Hartford. Shortly before, they had heard gunshots. They saw three men on the other side of the street, who then crossed the street and began following them. A few moments later, they were stopped by the three men. One of the men said something to the victim's companion that was inaudible to the victim, and the companion fled. One of the trio then approached the victim and knocked off his eyeglasses. Another of the men then stood next to the victim, placed a handgun to his head, and instructed him to hand over his jacket and his watch. The victim complied. The man then struck the victim on the bridge of the nose with the handgun, fracturing his nose and knocking him down onto the sidewalk. When the victim tried to stand up, the third man, wielding a shotgun, knocked him back to the ground. The man then struck the victim in the eye with the butt of the shotgun and pointed the shotgun at the victim's neck. One of the men then removed cash from the victim's pocket. The men told the victim to leave and quickly left the scene themselves. The victim then went to a friend's house nearby and reported the crime to a police officer shortly thereafter. In his report to the police, the victim described the man with the handgun as five feet six inches tall and of medium build. The police subsequently took three suspects into custody on that night. The next day, the victim went to the police station, where he was presented with a photographic array containing three sets of eight photographs. Out of the array, the victim selected photographs of three men, one of whom was the defendant. Prior to trial, the defendant made a motion to sever his trial from the trials of the other two men. The trial court denied the motion. At trial, the victim's pretrial identification of the defendant was admitted into evidence. The victim testified, however, that the man with the gun was actually taller than five feet six inches, and was approximately five feet ten or eleven inches tall. Both at trial and at the hearing on the motion for new trial, the victim observed that the defendant was taller and heavier than the man with the gun he remembered immediately after the robbery. The defendant is six feet tall and at the time of the robbery weighed about 215 pounds. The defendant first claims that the trial court improperly admitted testimony concerning the victim's pretrial identification of the defendant because the photographic array procedure was unnecessarily suggestive and wholly unreliable. Because no objection was made to the admission of the pretrial identification at trial, the defendant urges that this claim is reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1990). The manner in which we determine whether a defendant's due process rights have been violated by a pretrial identification procedure, such as the photographic array in this case, is well established. "[T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the 'totality of the circum stances.' " State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); State v. Howard, 221 Conn. 447, 453, 604 A.2d 1294 (1992). "A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure. ." (Citations omitted; internal quotation marks omitted.) State v. Payne, 219 Conn. 93, 106, 591 A.2d 1246 (1991). The defendant first contends that because there were only twenty-four photographs shown to the victim, the photographic array was unnecessarily suggestive. "The presentation of an array of several photographs to witnesses, including that of the suspect, does not constitute an impermissibly suggestive pretrial identification procedure 'in the absence of any unfairness or other impropriety in the conduct of the exhibit.' " State v. Boscarino, 204 Conn. 714, 726, 529 A.2d 1260 (1987). There is no requirement that a certain number of photographs be shown to a witness. State v. Watson, 165 Conn. 577, 591, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974). We conclude that the procedure in the present case was not rendered unnecessarily suggestive by the number of photographs shown to the victim. The defendant also asserts that because there were three sets of photographs and three suspects, the defendant's photograph was emphasized by the police, and the procedure was unnecessarily suggestive. In support of this assertion, the defendant cites the victim's testimony that he believed that each of the three sets of photographs contained a picture of one of the suspects. That belief, however, was not based on any suggestion on the part of the police. The police did not tell the victim that each set would contain a picture of a suspect, nor did they emphasize any particular photographs for the defendant to select. In State v. Williams, 203 Conn. 159, 177, 523 A.2d 1284 (1987), our Supreme Court held that when a victim would have inferred without police comment that a photograph of a suspect was present in the array, police comments to that effect did not render the identification procedure unnecessarily suggestive. "When a crime victim is asked to view a display of photographs directly following her description of the perpetrator of the crime, she may reasonably surmise that 'the police may consider one of the persons presented . [to be] a suspect in the case.' " Id. Consequently, the victim's subjective belief in the present case, with no police comment, that each set of photographs contained a picture of a suspect does not render the procedure unnecessarily suggestive. Finally, the defendant contends that the procedure was unnecessarily suggestive because the victim was forced to choose the photograph with the greatest likeness to the defendant from the limited number of photographs in the array. In every photographic array, however, a witness attempts to select a photograph of an individual who he or she believes to be a suspect in the crime in question. Further, in the present case it was the victim, and not the police, who ended the photographic identification procedure. We conclude that the pretrial identification procedure was not unnecessarily suggestive. Therefore, the defendant has not established that a constitutional violation clearly exists and clearly deprived him of a fair trial, and his claim must fail under the third prong of State v. Golding, supra. The defendant also claims that the trial court improperly denied his motion to sever his trial from those of his codefendants. The defendant asserts that he was prejudiced by the trial court's denial of his motion to sever because (1) trying him with two codefendants who were positively identified compelled the jury to infer the presence of the defendant as the third attacker, (2) the withdrawal of one of the codefendants during trial presented the jury with an inappropriate opportunity to speculate about the sudden disappearance of a codefendant, and (3) he was the only codefendant who asserted an alibi defense. "General Statutes § 54-57 and Practice Book § 829 authorize a trial court to order a defendant to be tried jointly on charges arising separately. In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. . . . The defendant bears a heavy burden of showing that the ' "denial of severance resulted in substantial injustice," and that any resulting prejudice was "beyond the curative power of the court's instructions." ' . . ." (Citations omitted.) State v. Herring, 210 Conn. 78, 94-95, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). Indeed, "[jjoint trials are the rule, and separate trials will be ordered only when ' "the defenses of the accused are antagonistic, or evidence will be introduced against one which will not be admissible against others, and it clearly appears that a joint trial will probably be prejudicial to the rights of one or more of the accused. . . ." ' State v. Vinal, 198 Conn. 644, 648, 504 A.2d 1364 (1986)." State v. Taylor, 21 Conn. App. 244, 246-47, 572 A.2d 1045, cert. denied, 215 Conn. 818, 576 A.2d 548 (1990). In this case, the trial court thoroughly cautioned the jury against drawing impermissible conclusions as to the withdrawal of one of the codefendants. Also, the fact that the defendant was the only codefendant to present an alibi defense does not render the denial of his motion to sever an abuse of discretion because the defendant's alibi defense was not antagonistic to his codefendant's claims of innocence. Further, the defendant has failed to specify what, if any, evidence was admitted at the joint trial of the defendants that would not have been admissible at the defendant's separate trial. After a thorough review of the record, we conclude that the trial court's denial of the defendant's motion to sever was a proper exercise of discretion. The judgment is affirmed. In this opinion the other judges concurred. We note at the outset that our Supreme Court has consistently held that a "partial misdescription of the person being identified goes to the weight rather than to the admissibility of the identification. . . .The weaknesses of identifications can be explored on cross-examination and during counsel's final arguments to the jury. . . ." (Citations omitted; internal quotation marks omitted.) State v. Williams, 203 Conn. 159, 178, 523 A.2d 1284 (1987). A defendant "can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1990). The conditions as set forth in Golding need not be considered in any particular order. State v. Shaw, 24 Conn. App. 493, 497, 589 A.2d 880 (1991). At trial, the police officer who showed the victim the photographs testified: "These photos were handed to him in a stack form and he was asked to go through the photos and he started going through the photos, and it is my normal procedure to have the witness or the victims of crime look at all photo arrays. When he came to photo — I believe it was the sixth in this array — he stopped and said, 'This was the person who assaulted me with the handgun last night,' and I said, 'Would you please look at the other two.' He said, T don't have to; I am 100 percent sure that this is the person.' I said 'Fine.' " The victim also testified that he was positive that the photographs that he selected from the photographic array were of his attackers. The court instructed the jury, in part, as follows: "I want to advise you that Mr. Saunders' matter has been resolved without the necessity of your further participation in that case, and you will need concern yourself only with the two remaining defendants, Messrs. Johnson and Harris. I want to tell you very clearly that you must not speculate in any way as to how Mr. Saunders' case was resolved, nor may you consider his absence in any way in resolving the cases of Messrs. Johnson and Harris. That is to say, they are to have no — his absence or his withdrawal from the further participation in this trial is not to be considered by you in any way in your deliberations or in your arrival upon a verdict concerning Mr. Johnson and Mr. Harris . Even though the cases have been tried together, you must deliberate with respect to each count of each information as if the defendant whose ease you are then considering had been tried separately. Thus you should keep in mind that your findings in one case do not in themselves establish a basis for similar findings in the other case. . . . Let me remind you again that you must consider each charge against each defendant separately from the other and reach separate verdicts as to each count as against each defendant."

Foti, J. The plaintiff appeals from the January 17, 1991, decision of the workers' compensation review division, dismissing his appeal from the commissioner's July 31,1989, denial of a "motion to reopen" compensation proceedings. The plaintiff claims that the review division improperly (1) failed to find that an insurer that is not paying the claimant temporary total disability benefits is obligated to disclose to the commissioner information from the claimant's treating physician indicating that the claimant is unable to work, (2) failed to find that the commissioner should have granted the claimant's motion to open the compensation proceedings upon receipt of information from the claimant's treating physician that the claimant is unable to work, and (3) found that certain correspondence between the insurer and the treating physician was immaterial to the motion to open the proceedings. We affirm the decision of the compensation review division. The following facts are pertinent to this appeal. The plaintiff injured his back on February 27,1980, while working at the YMCA of Greenwich. The plaintiff, the YMCA, and its insurer, Royal Insurance Company (Royal), entered a voluntary agreement acknowledging compensability on April 29, 1981. The agreement was approved by the commissioner, and the plaintiff began receiving temporary total disability benefits. On March 17,1980, shortly after the work related accident, the plaintiff suffered a back injury that was not work related when he slipped on some waxed stairs at the Greenwich YMCA, where he also lived. He later filed a common law action against the YMCA. As part of Royal's ongoing investigation of the compensation claim, the plaintiff was examined on April 15, 1983, by Arthur Brovender, an orthopedic surgeon. During the examination, the plaintiff allegedly suffered additional back injury, for which he later brought a malpractice action against Brovender. On May 14,1984, Royal requested that the plaintiff submit to a second independent medical examination. The plaintiff agreed to undergo the exam, but advised Royal that, pursuant to General Statutes § 31-305, he wanted his treating physician, James D. Prokop, to be present. While arrangements were being made for the exam, Royal stopped paying benefits and filed a "Notice to Compensation Commissioner and Employee of Intention to Discontinue Payments" (form 36). The reason for termination stated on the form 36 was the plaintiff's refusal to undergo an independent medical examination. The commissioner issued a conditional form 36 approval and suspended benefits on July 9, 1984. The plaintiff has received no further temporary total disability benefits since July 3, 1984. The exam was eventually performed on August 1, 1984. The plaintiff contested the form 36 on July 13,1984. Thereafter, the commissioner held a series of seven hearings between December 1984 and August 1986, at which the plaintiff submitted medical information from both his treating physician and chiropractor. On December 26,1986, the commissioner issued a finding and dismissal of the plaintiff's claim. The decision was based on the commissioner's findings that the plaintiff's March 1980 and April 1983 injuries were intervening causes of his disability, and that the plaintiff had failed to relate his current condition causally to the compensable event of February 27, 1980. The plaintiff appealed the commissioner's dismissal, the compensation review division affirmed the commissioner, and this court affirmed the review division. Tutsky v. YMCA, 6 Conn. Workers' Comp. Rev. Op. 167 (1989), affd, 21 Conn. App. 806, 572 A.2d 391, cert. denied, 214 Conn. 809, 573 A.2d 321 (1990). Following the dismissal, the plaintiff made three motions to open his case, in order to introduce additional medical information. The first two motions were denied by the commissioner, and, after each denial, the plaintiff appealed to the review division, which affirmed the denials. In his third motion, the plaintiff sought to introduce some newly discovered correspondence consisting of four letters between Vincent Afasano of Royal and Prokop, the plaintiff's physician, which he claimed were material to his case. The letters were discovered by the plaintiff's attorney during a review of Prokop's records, preparatory to trial of the malpractice action against Brovender. This third motion was denied after the commissioner determined that the four letters were not material to the claim, in that they did not causally connect the claimant's condition to the February 1980 injury. On January 17,1991, the compensation review division dismissed the plaintiffs appeal from the denial of this third motion. The plaintiff then filed the present appeal. The plaintiff first claims that the review division improperly found that Royal did not have a duty to disclose to the commissioner the four letters between Royal and Prokop at the time this correspondence was exchanged. He bases this claim on General Statutes (Rev. to 1987) § 31-290b, which was in effect at that time and which provided: "Any person who knowingly makes a false statement or representation or fails to disclose a material fact in order to obtain, increase, pre vent or decrease any benefit or payment under this chapter shall be guilty of a class A misdemeanor." The thrust of the plaintiffs claim is that these letters contained "material facts" relevant to his compensation claim, and that because Royal failed to disclose them when they were written, the commissioner, exercising his equitable powers, should have permitted their introduction when they were later discovered. As we will discuss more fully below, the commissioner reviewed the four letters between Royal and Prokop, and found that, although they refer to the plaintiffs injury, the letters shed no light on the critical issue affecting liability in this case: whether the plaintiffs current condition is causally related to his February 1980 work related accident. The commissioner concluded that none of the letters specifically addressed the issue. While this evidence may have been new, in that the plaintiff did not have these particular letters in hand at the time his case was originally before the commissioner, the letters contained no new information about the plaintiff's condition; they merely reiterated the medical data already submitted and would not have affected or materially changed the commissioner's decision. General Statutes § 31-290b addresses only the consequences of a failure to disclose "material" facts. Since the commissioner found that the information in these letters was not "material," Royal's failure to disclose them could have no bearing on the outcome of the plaintiff's case. The plaintiff's second and third claims challenge the review division's affirmance of the commissioner's determination that the plaintiff was not entitled to an opening of his compensation claim because of the newly discovered correspondence between Royal and Prokop. The commissioner held that this evidence was cumulative and not likely to change the outcome of the case, and the review division affirmed this decision. We agree. A workers' compensation award is, by nature, an interlocutory decree. Fair v. Hartford Rubber Works Co., 95 Conn. 350, 356, 111 A. 193 (1920). As such, it is "always limited to a claimant's current condition and always subject to later modification upon the request of either party during the entire period of compensation if the complainant's condition changes." Besade v. Interstate Security Services, 212 Conn. 441, 444-45, 562 A.2d 1086 (1989). General Statutes § 31-315, which provides statutory authority for opening an award when the disability changes, also permits modification when "changed conditions of fact have arisen which necessitate a change of such agreement or award in order to properly carry out the spirit of [the workers' compensation laws]." (Emphasis added.) See Adzima v. UAC/Nordm Division, 177 Conn. 107, 116, 411 A.2d 924 (1979). While a workers' compensation award may, under the appropriate circumstances, be opened, the decision to do so and to modify the award is within the sound discretion of the commissioner. Lucarelli v. Earle C. Dodds, Inc., 121 Conn. 640, 645, 186 A. 641 (1936). The commissioner must "deny the motion [to open] unless further hearing would produce evidence of such char acter and force that it would be likely to cause a different result." Metall v. Aluminum Co. of America, 154 Conn. 48, 53, 221 A.2d 260 (1966); accord Meadow v. Winchester Repeating Arms Co., 134 Conn. 269, 273-74, 57 A.2d 138 (1948); Olivieri v. Bridgeport, 126 Conn. 265, 270, 10 A.2d 770 (1940). In Meadow v. Winchester Repeating Arms Co., supra, the court stated that " '[a] party to a compensation case is not entitled to try his case piecemeal, to present a part of the evidence reasonably available to him and then, if he loses, have a rehearing to offer testimony he might as well have presented at the original hearing. . . . Where an issue has been fairly litigated, with proof offered by both parties, a claimant should not be entitled to a further hearing to introduce cumulative evidence, unless its character or force be such that it would be likely to produce a different result. . . .' " (Citation omitted.) The test by which the commissioner determines whether to open a claim is "whether the new evidence [is] sufficient to show that an injustice had been done by his award and that a different result would probably be reached on a new hearing." Meadow v. Winchester Repeating Arms Co., supra, 275-76. As our Supreme Court pointed out in Meadow, "the action of a compensation commissioner upon a motion to open his award for the purpose of hearing further evidence is like that of a court upon a motion for a new trial." Id., 273. In Besade v. Interstate Security Services, supra, 452, the court specifically held that a claimant seeking to open a workers' compensation proceeding must establish the following by a preponderance of the evidence: "(1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial." Just as the decision whether to grant a new trial rests within the discretion of the trial court; Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987); the decision whether to open a compensation hearing and to admit additional evidence rests "very largely within the discretion of the commissioner." Meadow v. Winchester Repeating Arms Co., supra, 274. Importantly, it is the claimant who bears the burden of showing that there is new evidence that is likely to produce a "different result." Besade v. Interstate Security Services, supra, 453; Metall v. Aluminum Co. of America, supra; Meadow v. Winchester Repeating Arms Co., supra, 275. In the present case, the plaintiff did not meet this burden. The commissioner specifically found that the additional evidence that the plaintiff sought to introduce in connection with the motion to open the award did not establish the requisite causal connection between his current condition and the February 1980 work related injury. "This conclusion, that a causal connection was not proven, is essentially one of fact to be determined in view of all of the relevant circumstances, and it must stand unless it is one which could not reasonably or logically be reached on the subordinate facts. It must be tested by the subordinate facts and must stand unless it resulted from an incorrect application of law to them or because of an inference illogically or unreasonably drawn from them." Metall v. Aluminum Co. of America, supra, 52; Fair v. People's Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988). In this case, the commissioner's finding was not unreasonable, nor was it unsupported by subordinate facts. Until the time the plaintiff filed the third motion to open his claim, he had failed repeatedly to establish a causal connection between the February 1980 accident and his existing disability. Between 1984 and 1986, a series of seven evidentiary hearings were held during which the plaintiff had ample opportunity to make this necessary connection. "To be entitled to workers'] compensation, the plaintiff has the burden of proving that his injuries were sustained in the course of his employment and that they arose out of that employment." Dombach v. Olkon Corporation, 163 Conn. 216, 221, 302 A.2d 270 (1972). In his December 26, 1986 finding and dismissal, which was later affirmed by the review division and this court, the commissioner plainly states that none of the medical evidence made available on the plaintiffs behalf satisfied the requisite "quantum of proof," in that none of the evidence "causally relatefd] the claimant's problems at the time of these hearings to a compensable event based upon reasonable medical probability." Thus, the primary basis for this initial dismissal was the plaintiff's failure to establish the requisite causal nexus. Nor was this nexus established in the plaintiff's first two motions to open the proceedings. The first motion to open was denied because the commissioner concluded that the medical information the plaintiff sought to introduce "was or should have been available at the time of the Formal Hearings, since the hearings revolved about the respondent's claims, among others, that the claimant's disability was attributable to incidents other than the compensable accident of February 27, 1980. . . ." Similarly, the plaintiff's second motion to open was denied on the basis that the three additional medical reports he sought to introduce "contain[ed] findings which verified] a back injury, however none of them distinguish[ed] the reason for the claimant's disability as being attributable to his concededly compensable injury of February 27,1980, a subsequent alleged injury on April 15,1983 during the course of an independent medical examination by the insurance company's physician, or a fall down stairs on March 17, 1980." The plaintiffs repeated inability to link his condition to the February 1980 accident, as well as the content of the newly discovered letters themselves, fully support the commissioner's denial of the third motion to open the compensation proceedings. As we noted earlier, the commissioner examined the letters between Royal and Prokop and found that, while referring to the plaintiff's injury, none of the letters squarely resolved the causality question. The letters merely restated the medical data already before the commission and would not affect or materially change the decision. Lucarelli v. Earle C. Dodds, Inc., supra. As such, they presented no changed "conditions of fact" that necessitated opening the claim. The compensation review division agreed, stating that it was "unlikely the evidence claimant proffers would change the ultimate result as it is not material to the causation of claimant's disability." The commissioner's determination that the proffered letters were cumulative and not material to the causality question, being one of fact, was committed to his discretion. Fair v. People's Savings Bank, supra, 541 (the question whether an injury arose out of the employment is factual in nature and is committed to the commissioner's discretion); see also Besade v. Interstate Security Services, supra, 448; Adzima v. UAC/Norden Division, supra, 117-18. "[T]he discretion of a commissioner in a matter of this kind should not be lightly disturbed." Furlani v. Avery, 112 Conn. 333, 339, 152 A. 158 (1930). Where the decision of the commissioner was neither arbitrary nor capricious nor an abuse of discretion, the review division was bound by the commissioner's conclusion. Besade v. Interstate Security Services, supra; Fair v. People's Savings Bank, supra. The review division's "hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is obliged to hear the appeal on the record and not 'retry the facts.' . . . The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them." (Citations omitted.) Fair v. People's Savings Bank, supra, 538-39. We have reviewed the record and the proffered letters and find nothing to warrant disturbing the commissioner's factual conclusion or the review division's affirmance. The August 18 and September 4,1987 letters from Royal to Prokop requesting medical information about the plaintiff do refer briefly to the February 27, 1980 work related injury. But neither these letters nor Prokop's August 26 and September 9, 1987 replies address or resolve the crucial issue affecting liability: whether the plaintiff's current condition is causally related to that particular injury. Finally, the plaintiff urges that he has been denied procedural due process by the commissioner's failure to hold a hearing on his motion to open. In his brief, he states that denial of the motion "without the statutory notice and hearing is further evidence of the failure of the commissioner to give the plaintiff due process and to deal with this case equitably, in a humanitarian way, as intended by the legislation. The commissioner has abused his discretion in denying this motion and is required to give notice and hearing as required by statute." We find this due process argument to be without merit. The plaintiff contends that because the correspondence between Royal and Prokop was "material," the commission was obligated, under General Statutes § 31-315, to provide him with notice and a hearing before ruling on the motion to open. In his brief, he states that General Statutes § 31-315 provides "for notice and hearing on any application under this section" (Emphasis added.) The plaintiff has misread the statute. Section 31-315 provides for modification of an award "whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement or award . . . ." These notice and hearing requirements, however, which are prerequisites to the commissioner's modification of an award, come into play only after a threshold determination has been made that "conditions of fact have arisen which necessitate a change"; in other words, after the commissioner has determined that the new evidence is "material" and warrants opening the claim. Besade v. Interstate Security Services, supra, 452; Meadow v. Winchester Repeating Arms Co., supra. In this case, the commissioner, in his discretion, determined that no new conditions of fact had arisen that necessitated a change; the proffered evidence was "merely cumulative." There was, therefore, no reason to proceed to the "notice and hearing" stage. The decision is affirmed. In this opinion the other judges concurred. The plaintiff moved to "reopen and modify" the compensation proceedings. Unless a decision has been opened previously, however, the appropriate term is a motion to open. See National Iron Bank v. Gelormino, 28 Conn. App. 7, 8 n.1, 609 A.2d 666 (1992). We will therefore treat the motion as a motion to open. The statute was repealed in 1990. Public Acts 1990, No. 90-244, § 2. General Statutes § 31-315 provides: "Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter shall be subject to modification, upon the request of either party and in accordance with the procedure for original determinations, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question." It is noteworthy that the plaintiff merely alluded to this claim in the proceedings below and in his appellate brief. In response to questioning by this court at oral argument, however, the plaintiff pursued this argument more forcefully.

The defendant's petition for certification for appeal from the Appellate Court, 31 Conn. App. 497 (AC 10999), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 32 Conn. App. 360 (AC 11613), is granted, limited to the following issues: "1. In a civil case, must a statement of a party opponent be inconsistent with the party's position at trial in order to be admissible? "2. If the answer to question 1. is no, was the ruling of the trial court excluding the plaintiff's November, 1989 letter harmful error?"

The petitioner Barry G.'s petition for certification for appeal from the Appellate Court, 31 Conn. App. 941 (AC 11667), is denied. Decided September 15, 1993 Susan F. Filan, special public defender, in support of the petition. Cathleen Mulligan-Edwards, state's advocate, in opposition.

The defendant's petition for certification for appeal from the Appellate Court, 32 Conn. App. 193 (AC 10974), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 31 Conn. App. 931 (AC 11887), is denied.

The defendants' petition for certification for appeal from the Appellate Court, 32 Conn. App. 746 (AC 11420), is denied.

Norcott, J. After a jury trial, the defendant, Robert Sauris, was convicted of the crime of murder in violation of General Statutes § 53a-54a (a). Subsequently, he was sentenced to a term of imprisonment of forty years. The defendant appeals from the judgment of conviction, claiming that the trial court improperly: (1) denied his postverdict motion for judgment of acquittal because there was insufficient evidence from which the jury could find the defendant guilty beyond a reasonable doubt; (2) denied his motions to exclude as irrelevant evidence of sneaker prints, a fingerprint, a pharmacy receipt and red shirt fibers; (3) limited the defendant's impeachment of a state's witness with prior convictions; and (4) found, at a probable cause hearing prior to trial, that there was probable cause that the defendant had murdered the victim. We affirm the judgment. The jury reasonably could have found the following facts. On Tuesday, May 15,1990, at approximately 9:30 a.m., Joseph Gerald (Gerry) Deziel and his brother, Richard Deziel went to the home of the victim, Joseph Sylvestro, located at 49 Pine Ridge Drive in Wolcott. Sylvestro was a sixty-nine year old widower who lived alone. The purpose of the visit was to finalize arrangements for a trip to Florida that the victim and the Deziel brothers were to make within the next few days. Upon arriving at the house, the Deziel brothers saw the victim's car in the driveway but found that the doors and windows to the house were closed and locked. The victim did not respond to the doorbell or knocks on any door. The Deziels, looking through a window, noticed that a door to an interior breezeway was uncharacteristically open and that a light shone from the basement stairway. They became concerned because they knew that the victim was in poor health and had a history of falling down. The victim had previously fallen down in various parts of the house, including the basement staircase. After many unsuccessful attempts to rouse the victim and gain entrance into the house, the Deziels noticed that there were two days of newspapers in the mailbox. At approximately 10 a.m., they went to the Wolcott police station to report their concerns and to request an investigation. Detective Robert Charette and Lieutenant Don Therkildsen went to the victim's home. The two policemen observed the same conditions as had the Deziel brothers and they also noticed that there were no signs of forced entry. After failing to receive a response to their calls, Charette and Therkildsen forced their way into the house through the kitchen door. Inside, they observed signs that a violent struggle had occurred in the living room near the chairs where the victim often slept. Charette ultimately discovered the body of the victim lying at the bottom of the basement stairway. The victim had suffered severe head injuries including a large puncture and fracture of his skull near the left temple. The injuries had been caused by a blunt instrument with a well defined edge that had penetrated and exposed the victim's brain. The victim had also been strangled. Medical evidence indicated that death had occurred sometime between 9:30 a.m. and 9:30 p.m. on Monday, May 14,1990. The physical evidence found in the house was consistent with the theory that the victim had been strangled in the living room area, dragged to the bottom of the basement staircase and then had been struck with a blunt instrument, in an attempt to give the appearance that he had fallen down the stairs. The investigation into the death of the victim ultimately focused on the defendant, who was an acquaintance of the victim and a frequent overnight guest at the victim's home. Two weeks prior to his death, the victim had told Charette and Lieutenant Joseph Forte that he feared the defendant, that the defendant was stealing things from him, particularly his medications, and that the defendant acted "crazy" when he drank. Furthermore, on May 15, 1990, an anonymous male person, later determined to be Gerry Deziel, called the Wolcott police station and stated that the defendant had killed the victim. In the course of the investigation, the police discovered that a black leather wallet containing the victim's credit cards and a faux gold and diamond ring that the victim had always worn on his left hand were missing. Three witnesses saw the defendant wearing the ring on the same day that the victim's body was discovered. The defendant, when asked how he had acquired the ring, gave different accounts concerning its acquisition. Furthermore, the defendant used the victim's otherwise unused VISA credit card to charge purchases on twelve occasions the day of and the day after the murder. The police also discovered three sneaker prints on the floor of the victim's basement workshop near the victim's body, a creme de menthe bottle with the defendant's fingerprint, placed at the top of the kitchen wastebasket sometime on or after Sunday, May 13, 1990, and a pharmacy receipt with the defendant's name in the victim's bathroom wastebasket. On May 16, 1990, pursuant to a search and seizure warrant, members of the Wolcott police department seized the following items from the defendant's home in Middlebury: the defendant's automobile, two pairs of his sneakers, clothing including a red shirt, and a bottle of valium tablets. The sneakers matched the prints found in the victim's basement, fibers from the red shirt were consistent with fibers found in the carpet under the victim's body, and the valium bottle matched the pharmacy receipt found in the victim's wastebasket. The defendant gave the police a sworn statement accounting for his whereabouts from Saturday, May 12, to Wednesday, May 16,1990, and consented to a medical examination. The examination revealed a number of bruises and abrasions on his face, hands, knuckles and knees, some of which were inconsistent with the defendant's claim that he had received the abrasions when he was attacked by two youths on May 15,1990. On June 1, 1990, the defendant was arrested and charged with the victim's murder. Other pertinent facts will be discussed as they become relevant to the claims raised by the defendant in this appeal. I The defendant first claims that the trial court improperly denied his postverdict motion for judgment of acquittal based upon the insufficiency of the evidence. The defendant makes three related arguments in support of his claim. First, he argues that the evidence failed to connect the defendant with the death of the victim and was therefore insufficient to establish guilt beyond a reasonable doubt. Second, the defendant claims that the evidence presented at trial did not preclude the reasonable hypothesis that a third party had killed the victim, and therefore, that the evidence was insufficient to support a guilty verdict. Finally, the defendant argues that certain postverdict statements of anonymous jurors made to a newspaper reporter indicate that the jury did not apply the correct standard of proof to the evidence. We reject this claim in its entirety. A We review a claim of insufficiency of the evidence in accordance with a well established two part test. "We first construe the evidence presented at trial in a manner favorable to sustaining the verdict, and then determine whether the jury could reasonably have found, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Gomez, 225 Conn. 347, 350, 622 A.2d 1014 (1993); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991)." State v. Crafts, 226 Conn. 237, 243, 627 A.2d 877 (1993). The probative force of the evidence is not diminished if it consists of circumstan tial, rather than direct, evidence. State v. Moody, 214 Conn. 616, 625, 573 A.2d 716 (1990). The critical evidence against the defendant can be summarized as follows. Several witnesses for the state gave testimony from which the jury reasonably could have inferred that the defendant had been at the victim's home at the time of his death. Peter Churchelow, a close friend of the victim, testified that he had had a telephone conversation with the defendant when Churchelow had called the victim's home at approximately 10:30 a.m. on May 14, 1990, in which the defendant had stated that he had been staying at the victim's house since May 12,1990. During the conversation the defendant agreed to bring the victim to Churchelow's house later that day for a drinking session, but the two never arrived. Churchelow testified at trial that on May 16, after he had read about the victim's death, he had called the defendant and the defendant had explained that he had not driven the victim to Churchelow's home because the victim had been too drunk and that he, the defendant, had subsequently been mugged on a downtown Waterbury street. Another telephone caller, Douglas Lynch, testified that he had spoken to a person who had identified himself as "Bobo" (the defendant's street name) at 11:15 a.m. on May 14. Lynch had been trying to locate his friend, Richard Deziel, whom Lynch believed to have been staying at the victim's home. Lynch, who knew the victim well, testified that, during the course of a disjointed conversation with the defendant, he neither had spoken to the victim nor had heard the victim's voice in the background, even during a period of silence when the defendant had left the phone. Furthermore, Lynch testified that he frequently called the victim's home and the victim always had answered the phone himself. The testimony of Dawn Zembruzski, the victim's neighbor, also placed the defendant at the victim's home on May 14,1990. She testified that, on that day, she had observed a vehicle similar to the defendant's light blue Plymouth parked behind that of the victim. She had observed this vehicle between 2:30 and 10 p.m. on four separate occasions as she had left and returned to her own home. Perhaps the most damaging evidence against the defendant was his possession and use of the victim's missing VISA credit card for purchases on twelve occasions on the day of and the day after the victim's death, during what can best be described as a shopping spree. Sales receipts from the purchases were admitted into evidence and three store clerks identified the defendant as the person who had used the victim's VISA credit card and had signed the victim's name in their respective stores. Furthermore, Santos Machado, who had accompanied the defendant and had driven him during his shopping spree, testified that he had witnessed the defendant make many of the purchases and that he had seen a receipt with the victim's name on the charge slip. Richard Deziel testified that, as a longtime friend of the victim, he was acquainted with the victim's habits regarding his credit cards and that the victim had never lent his credit cards to anyone. Further evidence supporting a finding of the defendant's guilt was the victim's missing faux gold and dia mond ring that the defendant had been seen wearing the day after the murder. Machado testified that the defendant had told him that an uncle had given the ring to him as a birthday gift. Two other witnesses, Adam Alvarado and Ramone Rosado, testified that the defendant had claimed that he had purchased the ring for $10 in a bar. The day after the murder, the defendant brought the ring to a jewelry store to be appraised. Furthermore, the jury heard evidence that contradicted the defendant's claim that the cuts, bruises and abrasions on his face, hands, knuckles and knees were the result of a mugging by two youths on a downtown Waterbury street. Sonia Gomez, a state's witness, testified that she had observed the mugging from her third floor apartment on Baldwin Street in Waterbury. She stated that, although two boys had pushed the defendant to the ground and had kicked him, there had been no actual fight and the boys had run off when she had shouted at them. Gomez testified that the defendant's head had hit the pavement resulting in a bloody cheek and forehead, and that she had gotten a towel from her daughter and had applied it to the defendant's wounded head. Moreover, Joseph Brenes, a physician who conducted a medical examination of the defendant on May 16,1990, opined that several of the defendant's injuries were too old to have been caused by the Baldwin Street incident or were inconsistent with the defendant's version of the incident. Finally, the physical evidence gathered during the investigation indicated that the defendant had been in the victim's home as late as May 13, 1990, the day before the murder. Also, sneaker prints found near the victim's body matched the sneakers located during the search of the defendant's home and red shirt fibers discovered on the carpet under the victim's body matched characteristics of red fibers taken from the defendant's shirt. The defendant argues that, from the totality of the evidence presented at trial, the jury could not have concluded beyond a reasonable doubt that the defendant had killed the victim. The defendant suggests that the physical evidence failed to connect the defendant to the crime because the fibers, sneaker prints and fingerprints could have resulted from the defendant's activity in the house, where admittedly he had been a house guest. The defendant also argues that the presence of the faux diamond and gold ring and the use of the victim's VISA credit card do not indicate anything more than that the defendant had taken these items from the victim's home where he had easy access to them. While much of the state's case rested upon circumstantial evidence, we cannot say that the evidence was insufficient for the jury to have found the defendant's guilt proven beyond a reasonable doubt. In so concluding, we note that " '[tjhere is no legal distinction between direct and circumstantial evidence so far as probative force is concerned.' " State v. Brown, 168 Conn. 610, 618, 362 A.2d 910 (1975). "[I]t is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence." (Internal quotation marks omitted.) State v. Crafts, supra, 245. "[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.) State v. Grant, 219 Conn. 596, 604, 594 A.2d 459 (1991). "If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Adams, 225 Conn. 270, 277, 623 A.2d 42 (1993). In light of the factual evidence and the inferences that could reasonably be drawn therefrom, we conclude that the jury could have determined that the state had established the defendant's guilt beyond a reasonable doubt. See State v. Baldwin, 224 Conn. 347, 368, 618 A.2d 513 (1993). The jury could reasonably have inferred from the evidence that the defendant had been present in the victim's home on the day of the murder, that the abrasions discovered on his body were the result of a struggle that he had with the victim, that he had taken the victim's body to the basement and placed it so as to make it appear that the victim had fallen down the stairs, and that he had taken the victim's ring and credit card and had used them without concern for whether his fraudulent use would be discovered by the victim. Accordingly, we conclude that the trial court properly rejected the defendant's motion for judgment of acquittal based on the insufficiency of the evidence. B The defendant also contends that the evidence he had presented at trial that a third party had killed the vie tim was sufficient to preclude the jury's finding that he was guilty of murder beyond a reasonable doubt. We disagree. It is well established that a defendant has a right to introduce evidence that another person committed the offense with which the defendant is charged. State v. Hernandez, 224 Conn. 196, 202, 618 A.2d 494 (1992). Third party suspect evidence is admissible if it directly connects the third party to the crime. State v. Echols, 203 Conn. 385, 392, 524 A.2d 1143 (1987). "It is not enough [however] to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused." (Citations omitted; internal quotation marks omitted.) State v. Hernandez, supra. At trial, the defendant admitted evidence to support his theory that a third party, either Gerry Deziel or Richard Deziel or both, had killed the victim. This evidence tended to show the following: (1) that Gerry Deziel had known the victim well and had known that the victim kept large amounts of money in his house; (2) that Gerry Deziel had talked about killing the victim in the past; (3) that the Deziel brothers had planned to visit the victim on the day of the murder between noon and 1 p.m.; and (4) that two weeks after the defendant's trial had begun, Gerry Deziel had made incriminating statements concerning his involvement in the victim's death in front of three witnesses. Each of the witnesses who testified in support of this theory was impeached with evidence of an unfriendly relationship with Gerry Deziel and/or with prior con vietions. Also, the jury could have considered the testimony of the Deziel brothers that they were close friends of the victim. Richard Deziel testified that he had given the victim as a gift the missing faux gold and diamond ring that was later seen on the defendant. Moreover, no physical evidence linked either Gerry or Richard Deziel to the scene of the crime. The defendant nonetheless contends that, because the evidence at trial did not preclude the hypothesis that either Gerry or Richard Deziel had killed the victim, the state's evidence was insufficient to permit a finding of his guilt beyond a reasonable doubt. We disagree. Once the evidence of third party guilt was before the jury, it was the jury's duty to weigh that evidence, to view the demeanor of the witnesses, and to assess their credibility. State v. Baldwin, supra, 367-68. Ultimately, it was up to the trier of fact to determine whether the evidence of third party guilt was such that it precluded a finding of the defendant's guilt. A jury may, when assessing evidence that could yield contrary inferences, draw those inferences consistent with guilt, and is not required to draw only those inferences consistent with innocence. State v. Adams, supra, 281. "When conflicting explanations are presented, the trier is entitled to reject, as less credible, testimony and inferences offered on behalf of the defendant." Id. The trier may even reject uncontradicted testimony if it finds that it is not credible, and this court cannot on appeal retry the case or pass upon the credibility of witnesses. State v. Baldwin, supra. The relevant inquiry is not whether the jury correctly evaluated the credibility of the various witnesses presented at trial, but whether there was sufficient evidence to support the defendant's conviction. We have already determined that there was sufficient evidence. Therefore, the defendant's argument is without merit and the trial court properly rejected this claim in denying the defendant's postverdict motion for judgment of acquittal. C The final part to the defendant's first claim also has no merit. The essence of his claim is that the jury applied an inappropriate standard of proof in convicting him, and, consequently, when this fact was revealed, the trial court improperly denied him a judgment of acquittal. The facts pertinent to this claim are as follows. At his sentencing, the defendant, in support of his motion for judgment of acquittal, offered a newspaper article and his personal representation that a juror had told a newspaper reporter that the jury had convicted the defendant because "[after] putting [the evidence] together as pieces of a puzzle . . . the evidence pointed more towards [the defendant] than it did towards [Gerry] Deziel." Finding this record inadequate, the trial court rejected the defendant's claim and denied his postverdict motion for judgment of acquittal. The defendant claims that this evidence indicates that the jury did not follow the court's instructions as to the state's burden of proving the defendant's guilt beyond a reasonable doubt. We agree with the trial court that this claim must fail because the defendant has failed to provide an adequate record for review. Jurors are presumed to have followed the instructions of the court as to the law in the absence of a clear indication to the contrary. State v. Negron, 221 Conn. 315, 331, 603 A.2d 1138 (1992). To challenge the conduct of the jury, the appellant bears the burden of furnishing a record adequate to review a claimed error. State v. Laracuente, 205 Conn. 515, 520, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988). A criminal conviction cannot be reversed on appeal on the basis of a newspaper article recounting a juror's informal statement concerning the jury's deliberative process, buttressed only by an affirmation by the juror's attorney attesting to the accuracy of the juror's statement. The newspaper article alone does not constitute a reviewable appellate record, and it is well settled that statements of counsel are not evidence. State v. Roman, 224 Conn. 63, 68, 616 A.2d 266, cert. denied, U.S. , 113 S. Ct. 1868, 123 L. Ed. 2d 488 (1992); State v. Tillman, 220 Conn. 487, 496, 600 A.2d 738 (1991), cert. denied, U.S. , 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992). Here, the defendant eschewed the opportunity to provide an adequate record for review of his claim. He neither requested a postverdict voir dire of the individual jurors nor requested a full evidentiary hearing regarding possible external influences on the jury's deliberations. Furthermore, he did not subpoena the individual jurors for examination by the trial court. Without resort to these and other avenues of inquiry, he has made it impossible for us to determine,.now, whether the jury employed an inappropriate legal standard to convict the defendant. " 'Our role in a case like this . is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . .' " State v. Tirado, 194 Conn. 89, 92-93, 478 A.2d 606 (1984). Considering the record'at hand, we cannot address this claim further. II The defendant next claims that the trial court improperly denied his motion in limine to exclude evidence of sneaker prints, a fingerprint, a pharmacy receipt and red shirt fibers. He argues that this evidence, admitted over his objections, "failed to show a relationship beyond a reasonable doubt between [it] and the death of the victim." We read this claim to rest on the issue of relevancy of the evidence. We disagree with the defendant's argument that the trial court improperly concluded that the evidence was relevant and improperly failed to instruct the jury to disregard this evidence. At the beginning of the trial, the defendant filed an unsuccessful motion in limine to preclude the admission of the evidence of the sneaker prints, a fingerprint and red shirt fibers. The defendant argued that this evidence was more prejudicial than probative because, since the state could not pinpoint the time when this evidence was produced, its admission would lead to speculation and conjecture on the part of the jury. During the trial, on grounds similar to those expressed in the motion in limine, the defendant also unsuccessfully objected to the state's offer of a pharmacy receipt, made out in the defendant's name and dated May 13, 1990, that the police had found in the victim's wastebasket on May 15, 1990. At the conclusion of the state's case-in-chief, and again at the conclusion of the evidentiary phase of the trial, the defendant moved to strike the evidence of the sneaker prints, fingerprint, shirt fibers and the pharmacy receipt. Finally, the defendant requested that the trial court instruct the jury to disregard this evidence on the grounds that it did not connect the defendant to the death of the victim and therefore had no probative value. The trial court denied the defendant's requests and instructed the jurors that it was their duty to determine whether and how the physical evidence fit together with the other circumstantial evidence and whether it was probative of the crime charged. The defendant argues that the trial court improperly admitted the challenged physical evidence. The defendant seems to argue that, because there were explanations for the presence of this evidence that did not necessarily implicate the defendant in the victim's death, and because these other explanations were not completely ruled out, the evidence was not probative of the defendant's involvement in the crime and was therefore irrelevant. Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. State v. Jeffrey, 220 Conn. 698, 704, 601 A.2d 993 (1991), cert. denied, U.S. , 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992). "We have also held that 'evidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree.' State v. Rinaldi, 220 Conn. 345, 353, 599 A.2d 1 (1991); State v. Jeffrey, supra, 706." State v. Marra, 222 Conn. 506, 521, 610 A.2d 1113 (1992). "[T]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible." (Internal quotation marks omitted.) State v. Joly, 219 Conn. 234, 252, 593 A.2d 96 (1991). The trial court has broad discretion to determine the relevancy of evidence, and we will not disturb a trial court's ruling on the admissibility of evidence in the absence of a clear abuse of discretion. State v. Holliman, 214 Conn. 38, 50, 570 A.2d 680 (1990). The physical evidence was probative on the issue of whether the defendant had been with the victim at his house during the period of time when the murder occurred. Accordingly, this evidence was relevant to whether the defendant had an opportunity to commit the crime with which he was charged. Also, the weakness of the inculpatory inferences to be drawn from this physical evidence was elicited by the defendant during cross-examination of the state's witnesses and was emphasized again during the defendant's final argument. Although conflicting interpretations might reasonably have been given to the presence of the evidence, the trier of fact bears the responsibility for assessing and reconciling such inconsistencies. We conclude that the trial court properly admitted the challenged evidence as relevant, and that it properly instructed the jury as to the consideration to be given it. Ill The defendant's third claim is that the trial court improperly precluded the defendant from introducing evidence of four prior felony convictions to impeach a state's witness, Gerry Deziel. The defendant contends that this error implicated the defendant's constitutional right to confront witnesses and that it requires a new trial. We disagree. At the conclusion of the direct examination of Gerry Deziel, and outside the presence of the jury, the state disclosed to the court and to the defendant that the witness had been convicted of the following crimes: four counts of breaking and entering in 1957; two counts of breaking and entering and two counts of larceny in 1958; one count of breaking and entering theft in 1959; and one count of larceny in the third degree in 1989. The defendant sought to use all of these convictions to impeach Gerry Deziel. The trial court concluded that the 1989 felony conviction was admissible to impeach the witness, but that the earlier convictions were too remote in time to have any probative value. The defendant elected, for strategic purposes, not to introduce a certified copy of the 1989 conviction on cross-examination of Gerry Deziel. Near the close of the defense case, however, the defendant attempted to introduce a certified copy of the 1989 conviction. The trial court ruled that the conviction could not come into evidence at that time, and that it should have been offered during cross-examination of the witness. There are three components to the defendant's argument on appeal. First, he argues that the trial court improperly excluded the 1957, 1958 and 1959 convictions as being too remote. Next, the defendant argues that the trial court improperly precluded him from introducing the 1989 conviction at the end of the defense case rather than during cross-examination of Gerry Deziel. Finally, the defendant argues that the exclusion of all of these convictions implicated his constitutional right to confront witnesses and therefore that the trial court committed reversible error. We address these claims seriatim. A The credibility of a witness may be attacked by introducing the witness' conviction of a crime if the maximum penalty for that conviction is imprisonment exceeding one year. See General Statutes § 52-145 (b); State v. Braswell, 194 Conn. 297, 307, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985). A trial court's decision to allow the use of a prior conviction for impeachment purposes will not be disturbed unless the court abused its discretion. State v. Braswell, supra. "Three factors have usually been identified as of primary importance in considering whether a former criminal conviction is to be admitted: (1) the extent of the prejudice likely to arise; (2) the significance of the commission of the particular crime in indicating untruthfulness; and (3) its remoteness in time." State v. Nardini, 187 Conn. 513, 522, 447 A.2d 396 (1982). The determination of remoteness is left to the sound discretion of the trial court. Id., 526; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.21.5, p. 197. While leaving the matter to the general discretion of the trial court, we have sanctioned a general guideline for the determination of remoteness that parallels rule 609 (b) of the Federal Rules of Evidence. Rule 609 (b) establishes a ten year limitation from conviction or release from resulting confinement upon the use of the conviction for impeachment purposes unless the probative value of the conviction substantially outweighs its prejudicial effect. State v. Nardini, supra, 525-26. Although we recognize that convictions having special significance on the issue of veracity may surmount the standard ten year bar; id., 526; we conclude that, in this case, it was within the trial court's discretion to conclude that three convictions more than thirty years old, even though bearing on the witness' veracity, were too remote to be admissible. "The probative value of a conviction in determining the credibility of a witness is related to the span of time between the conviction and the proffered testimony." State v. Roman, 6 Conn. App. 189, 191, 504 A.2d 529 (1986). We conclude that the trial court did not abuse its discretion when it ruled that the 1957,1958 and 1959 convictions were not sufficiently probative, and therefore were inadmissible to impeach Gerry Deziel. B The defendant also argues that the trial court abused its discretion by refusing to admit into evidence a certified copy of Gerry Deziel's 1989 felony conviction as untimely after it had earlier ruled that the 1989 conviction was admissible. In opposing the offer of the certified copy of the conviction at trial, the state argued, and the trial court agreed, that the offer was untimely because the introduction of the document at the close of the defense case would have denied the state the opportunity to rehabilitate its witness. The defend ant argues on appeal that there is no limitation in our Connecticut practice as to when he could introduce the conviction, and that the trial court abused its discretion in disallowing it. We agree. "Prior convictions, when offered to impeach credibility through the inference of general bad character, may be proved either by questioning the witness or by introduction of a certified copy of the judgment reflecting the conviction." State v. Denby, 198 Conn. 23, 29-30, 501 A.2d 1206 (1985), cert. denied, 475 U.S. 1097, 106 S. Ct. 1497, 89 L. Ed. 2d 898 (1986); see also State v. English, 132 Conn. 573, 581-82, 46 A.2d 121 (1946); C. Tait & J. LaPlante, supra, § 7.21.3, pp. 195-96. We have yet to determine, however, the precise time when such an offer of this type of evidence should be made. As a prefatory matter, we note that the federal rule governing impeachment by proof of convictions limits the offer of such evidence to the cross-examination of the witness. We have no similar rule in Connecticut, and we decline to establish one today. The defendant's right to confront the witnesses against him includes the right to impeach the credibility of those witnesses through prior convictions. See State v. Rodriguez, 180 Conn. 382, 393-94, 429 A.2d 919 (1980). We see no reason to burden that right by limiting the offer of copies of criminal convictions to the time of cross-examination. The state's argument that it would have been prejudiced by the admission of the documentary evidence of the conviction at the end of the defense case is unpersuasive. The state had the opportunity to make the jury aware of the conviction during Gerry Deziel's direct examination. Furthermore, our rules of criminal procedure would not have precluded the state from requesting further rebuttal to rehabilitate Deziel or prohibited the trial court from exercising its discretion to grant such a request. Practice Book § 874, which establishes the order of procedure in a criminal trial, provides in subsection (3) that "[t]he prosecuting authority and the defendant may present rebuttal evidence in successive rebuttals, as required" unless the trial court "for cause" permits otherwise. See State v. Addazio, 169 Conn. 416, 427, 363 A.2d 153 (1975). The state is allowed to rehabilitate a witness whose credibility has been impeached by a prior conviction by allowing that witness to explain the circumstances underlying the prior conviction; see State v. Morgan, 179 Conn. 617, 621, 427 A.2d 429 (1980); and may rebut such evidence by other evidence. See Smirnoff v. McNerney, 112 Conn. 421, 423, 152 A.2d 399 (1930); see also A. Spinella, Connecticut Criminal Procedure (1985) p. 700. Given the opportunities it would have had to rehabilitate the witness, we fail to understand how, under the circumstances of this case, the state would have been prejudiced by the introduction of the certified copy of Gerry Deziel's 1989 felony conviction at the conclusion of the direct examination of the defense's last witness. The state had notice that Deziel was subject to impeachment by the 1989 conviction by virtue of the trial court's preliminary ruling on the matter. The state could either have presented the conviction anticipatorily on direct examination of Deziel, or could have requested that rebuttal witnesses be called once the conviction had been entered into evidence by the defendant. Considering the importance of preserving the defendant's right to impeach witnesses against him, we con- elude that the trial court abused its discretion by excluding the defendant's offer of the certified copy of Gerry Deziel's 1989 felony conviction. C Our inquiry does not end there, however, for we now consider whether the trial court's preclusion of the evidence of the 1989 conviction requires a new trial. The burden of proving the harmfulness of the error depends upon whether the error is merely evidentiary or is of constitutional magnitude. Where evidentiary error is claimed, the defendant bears the burden of proving the harmfulness of the error before a new trial will be granted. Where the claimed error is one of constitutional magnitude, however, the state must prove that the error is harmless beyond a reasonable doubt. State v. Torres, 210 Conn. 631, 642-43, 556 A.2d 1013 (1989). The defendant contends that the trial court's evidentiary rulings regarding all of the convictions implicate his constitutional right to confront witnesses under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. In view of our conclusion that the trial court properly excluded the earlier three convictions, we consider the defendant's constitutional claim only with respect to the exclusion of the 1989 conviction. We note that the defendant did not claim at trial that the exclusion of the 1989 conviction violated his constitutional right to confront and cross-examine the wit nesses against him. Therefore, this claim is revie wable only under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We conclude that, even if the trial court's exclusion of the 1989 conviction was an error of constitutional magnitude, the defendant cannot prevail on this claim. Under the fourth prong of Golding, the state has demonstrated that the error was harmless beyond a reasonable doubt because the defendant had ample opportunity to impeach the credibility of Gerry Deziel. See footnote 19. Gerry Deziel testified at trial that he had not gone to the victim's home on May 14,1990, the day the murder occurred. He stated that he and his brother had gone to see the defendant on May 15, 1990, and that, having been unable to get an answer at the door, they had contacted the Wolcott police to investigate. Deziel also testified that, later that day, he had called the police and told them that the defendant had killed the victim. During the defense case, testimony was presented that Gerry Deziel had bragged in front of three witnesses that he had killed the victim but that it was nobody's business. Evidence was also presented that Deziel had talked before about killing the victim, and that he had known that the victim kept large amounts of money in his house. Furthermore, to contradict Deziel's testimony that he had not visited the victim on May 14,1990, testimony was presented that Deziel had told a friend that he and his brother were going to see the victim that day. The defendant argues that the 1989 conviction would have impeached Gerry Deziel's testimony that he had not gone to the victim's home on May 14, and could have therefore reasonably affected the verdict. Throughout the trial, the defendant took full opportunity to impeach the credibility of Deziel notwithstanding the exclusion of his prior criminal conviction. On cross-examination, Deziel himself admitted that the victim had accused him many times of stealing from him, although Deziel had previously described the victim as a close friend. The defendant also impeached Deziel's credibility with the testimony of Mary Beth Fleming. Fleming testified that, notwithstanding Deziel's assertion of friendship and close relationship with the victim, she had heard Deziel express hatred for the victim and make statements suggesting that he was involved in his death. Another defense witness, Gary Pesce, had corroborated that testimony. Furthermore, the testimony of Duke Halit, that Deziel had said he was on his way to see the victim on the afternoon of May 14,1990, contradicted Deziel's testimony that he had not gone to the victim's house until May 15. Also, the testimony of the witnesses for the defense vividly painted a picture of Gerry Deziel as an individual who was not a paragon of virtue. Witnesses Fleming, Pesce and Timothy Potter testified that Deziel was a drunken, vulgar, bad tempered man who did not repay his debts. In addition, Fleming told the jury that Deziel had raped her in 1989, and that on June 3,1991, he had threatened her if she told anyone about the rape. We are persuaded that the cumulative effect of the testimony of these defense witnesses effectively impeached Gerry Deziel's credibility and veracity to the same or similar extent as it would have been impeached by the addition of the excluded 1989 felony conviction. It is also significant to note that, while the defendant may have relied heavily on the jury's acceptance of Deziel as a suspect in the crime, Deziel was not the state's key witness against the defendant. Even without the testimony of Deziel, the state produced a case sufficient to sustain its burden of proving the defendant's guilt beyond a reasonable doubt. Therefore, we conclude that the admission of the 1989 conviction would not have tended to influence the judgment of the jury and therefore, under the fourth prong of Golding, the claimed error is harmless beyond a reasonable doubt. Our disposition of the defendant's constitutional claim necessarily determines that the claimed improper evidentiary ruling does not warrant a reversal of the judgment and a new trial. In the case of evidentiary error, the defendant bears the burden of proving harm. State v. Torres, supra, 642. "The defendant must show that it is more probable than not that the erroneous action of the court affected the result." (Internal quotation marks omitted.) State v. Payne, 219 Conn. 93, 103-104, 591 A.2d 1246 (1991). We have already determined, however, that even if the failure of the trial court to admit the 1989 conviction is assumed to be of constitutional magnitude, it did not " 'have a tendency to . . . influence the judgment of the jury' State v. Santiago, 224 Conn. 325, 333, 618 A.2d 32 (1992); and was therefore harmless. We conclude, therefore, for the reasons set forth above, that the defendant has failed to demonstrate the harmfulness of the court's exclusion of the 1989 conviction. IV The defendant's final claim requires little discussion. He seeks review of the sufficiency of the evidence at the probable cause hearing to support the finding of probable cause against him. At oral argument, however, the defendant's counsel conceded that his failure to prevail on his first claim would preclude his success on this one as well, since the evidence presented against the defendant at the probable cause hearing was substantially the same as that presented at trial. We therefore conclude that the trial court's finding of probable cause was adequately supported by the evidence presented at the hearing. The judgment is affirmed. In this opinion the other justices concurred. General Statutes § 53a-54a (a) provides in relevant part: "A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person." In fact, the victim usually confined himself to two living room chairs upon which he often slept due to a chronic back problem. He also took many medications in the form of pills for a variety of maladies. Papers were strewn about the floor, and blood-like stains appeared on a magazine and a piece of pink paper. A metal magazine rack lay crushed on the floor and the telephone had been knocked from its receiver. Also, the officers determined that a standing ashtray had been knocked over and then righted, leaving a deposit of ashes and cigarette butts on the floor which someone had attempted to scoop up and return to the ashtray. Dr. Henry Lee, the state's chief criminologist, testified that blood spattering near the bottom of the staircase was caused when the victim was struck by an assailant standing over him and wielding a blunt object with a well defined edge. Lynch described the victim as a loud voiced man. The times she observed the vehicle were 2:30 p.m., 3:15 p.m., 5:30 p.m., and 10 p.m. In contrast to the witnesses' testimony placing the defendant at the victim's home, the jury had before it the defendant's sworn statement to the police regarding his whereabouts on May 14,1990. This statement was replete with conflicting dates and times and factual nonsequiturs. The jury could have easily rejected the defendant's statement outright and have concluded that the evidence placing him at the victim's home on the day of the murder was more credible. Another witness testified that the defendant had approached him on May 15,1990, and had offered to sell, for one half of its value, a radio that the defendant had purchased earlier that day with the victim's credit card. This ring was never located. In support of this explanation for the defendant's injuries, Machado testified that he had witnessed the attack on the defendant on May 15 between 3:15 and 3:30 p.m. and that the defendant had received cuts on his face from which he was bleeding. Also, Rosado, a Baldwin Street storekeeper, testified that he had seen the defendant on May 14,1990, and had observed no cuts or marks on him at that time, but that he had observed injuries to the defendant's face on May 15, 1990, at approximately 5:30 p.m. Brenes had been called as a witness for the defense. The three witnesses introduced by the defendant at trial were Mary Beth Fleming, Timothy Potter, Fleming's boyfriend, and Gary Pesce. Each witness testified that they had been together in a bar and that there they had heard Gerry Deziel say, in reference to the murder, that it was his own business if he had killed the victim. The defendant's motion in limine also included other items such as the victim's faux gold and diamond ring, gun and credit cards. The defendant presently challenges the denial of this motion with respect to only the sneaker prints, a fingerprint, the pharmacy receipt and certain red shirt fibers. The trial court instructed the jury on this point as follows: "And I would just also at this particular juncture point out, which has been pointed out in argument as to certain facts that have been—obviously it's easy for you to believe, but I'm just making reference to them right now: The State has claimed that it's proved that there was a fingerprint of the defendant on a creme de menthe bottle; also that there were footprints found in the basement and two of the footprints they claim were from the defendant's sneaker and one came from a sneaker like the defendant's. And the third one, obviously, was the pharmacy receipt that was found in the wastepaper basket. Again, these are all what the claims of the State are. "So, all of these things are put together for you to determine how they fit in. And it has been pointed out by counsel there's no way of the dates of the footprints, but it's up to you to determine whether or not with all of the evidence together whether these things can be tied in date-wise and time-wise to the event. So that's what this circumstantial evidence is all about. If you come to the conclusion that the State hasn't done that, then you would disregard that particular piece of evidence or sequences of evidence. But, again, it's for you to consider all of the testimony, all of the exhibits and consider whether or not they all fit together as I've charged you on the definition of circumstantial evidence. Okay?" Federal Rules of Evidence 609 (b) provides in pertinent part: "Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." We have acknowledged that this federal standard is not our own, but rather serves "as a rough bench mark in deciding whether trial court discretion has been abused . . . ." State v. Nardini, 187 Conn. 513, 526, 447 A.2d 396 (1982). The state also argued that the certified copy of the conviction contained extraneous, prejudicial information that should not be viewed by the jury. The trial court's decision, however, was based solely on the question of the timeliness of the offer. The court reasoned that the document should have been offered during the cross-examination of Gerry Deziel. The state's argument regarding the alleged prejudicial contents of the document is therefore not in issue here. Federal Rules of Evidence 609 (a) provides: "For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment." (Emphasis added.) Our review of the record reveals nothing unusual in the course of this trial that would otherwise account for the trial court's exercise of its discretion in the manner that we have found to be improper. The trial court's reasoning that the offer of the certified copy was untimely rested on the court's sole belief that the defendant should have offered the document during Gerry Deziel's cross-examination. Because the defendant provides no separate analysis for his state constitutional claim, we do not address it. See State v. Mercer, 208 Conn. 52, 67 n.9, 544 A.2d 611 (1988). In State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), we held that a defendant can prevail on an unpreserved claim if only "all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) The defendant's counsel himself stated to the court that Fleming's testimony impeached Gerry Deziel. In an argument to the court concerning Fleming's testimony, the defendant's counsel stated: "As far as number one, the statements two years ago, Your Honor, I'm offering those as being contradictory. Mr. Deziel has testified here, it's being contradictory to his position that he was always good friends with Joe; that he never hated Joe; that Joe sometimes would get mad at him when he was drunk, but they always had a good relationship. And this indicates that he had a bad animus towards Mr. Sylvestro at that time as to the—It may not be relevant to this, except it is relevant to his testimony because Mr. Deziel—to impeach Mr. Deziel. . . ."

The state of Connecticut's petition for certification for appeal from the Appellate Court, 31 Conn. App. 278 (AC 10752, AC 10855), is granted, limited to the following issues: "1. Under applicable constitutional, common law or Practice Book rules, must a trial judge be physically present at voir dire in a criminal trial? "2. If the judge's physical presence is required, may the defendant waive the judge's presence, and did he do so in the circumstances of this case? "3. If the judge's physical presence is required, may the judge's absence be harmless error, and, if so, was it harmless error in the circumstances of this case?"

The defendant's petition for certification for appeal from the Appellate Court, 32 Conn. App. 476 (AC 11109), is denied.

The plaintiff's petition for certification for appeal from the Appellate Court, 32 Conn. App. 704 (AC 10937), is granted, limited to the following issues: "1. Did the Appellate Court properly conclude that the trial court had been correct in ruling that the qualified immunity defense under 42 U.S.C. § 1983 was not available to the plaintiff? "2. Did the Appellate Court properly conclude that the trial court had correctly excluded the evidence offered by the plaintiff on the issue of the plaintiffs qualified immunity under 42 U.S.C. § 1983?" The Supreme Court docket number is SC 14853. Decided October 15, 1993 Elliot B. Spector, in support of the petition. Kathleen Eldergill, in opposition.

Borden, J. The petitioner, Dennis Jackson, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. The habeas court concluded that the petitioner had failed to demonstrate good cause for his failure to pursue on direct appeal his claim of unconstitutional jury composition that was the basis of his habeas petition. We affirm the judgment of the habeas court. The record sets forth the facts and lengthy procedural history of this case. At his criminal trial, conducted in May, 1982, the petitioner was represented by Attorney John Buckley. Prior to the trial, Buckley had reached an agreement with assistant state's attorney Patrick Clifford, who Buckley understood would be prosecuting the petitioner's case. Buckley had agreed with Clifford that, in challenging the jury array in the petitioner's case, the petitioner could rely on evidence presented in another case that Buckley and Clifford had tried together and in which a jury array challenge had been brought. Clifford, however, did not try the petitioner's case, but instead was replaced by assistant state's attorney Robert Devlin. Devlin, unlike Clifford, was unwilling to stipulate to the jury array evidence that had been presented in the case that Buckley and Clifford had tried together. Devlin also argued to the trial court that the petitioner's motion challenging the array was untimely. In response, the trial court asked Buckley whether he was ready to present evidence necessary to challenge the array. Buckley stated to the court that he would need additional time to subpoena the appropriate witnesses and that he was not prepared to present evidence at that time. Although Buckley informed the trial court that he needed additional time because he had relied on his prior agreement with Clifford, the trial court denied his request for a continuance. The petitioner, therefore, was unable to introduce evidence to support his challenge to the jury array. The petitioner was subsequently convicted, after a jury trial, of first degree sexual assault, second degree kidnapping and first degree robbery. The petitioner appealed his conviction to this court and we affirmed the judgment of the trial court. State v. Jackson, 198 Conn. 314, 502 A.2d 865 (1986). In his direct appeal, the defendant did not raise a claim that the trial court had abused its discretion by denying his request for a continuance so that he could produce evidence to challenge the jury array. In 1987, the petitioner filed a petition for a writ of habeas corpus claiming that the jury array from which his petit jury had been selected had been summoned in violation of his federal and state constitutional rights. The habeas court denied the petition for habeas corpus and the petitioner subsequently appealed. His appeal was consolidated with the appeals of thirty-three other habeas petitioners whose similar jury array claims had been rejected by the habeas court. See Johnson v. Commissioner of Correction, 218 Conn. 403, 406, 589 A.2d 1214 (1991). In those consolidated appeals, the respondent, the commissioner of correction, asserted that, in each case, the habeas court had properly concluded that the com position of the jury array did not violate the petitioner's constitutional rights. As an alternative ground of affirmance, the respondent asserted that the proper standard by which to analyze the petitioners' failure to raise their jury array challenges at trial was the cause and prejudice standard as articulated in Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), as opposed to the deliberate bypass rule; see Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); upon which the habeas court had relied. We affirmed the judgment of the habeas court. In so doing, we concluded that the appropriate standard by which to analyze procedural defaults at trial was the Wainwright standard of cause and prejudice, and that the petitioner in each case had not demonstrated legally sufficient cause pursuant to that standard. Johnson v. Commissioner of Correction, supra, 409. The petitioner in this case then filed a motion for reargument or reconsideration, claiming that sufficient evidence had been presented in the habeas court to meet the cause and prejudice standard. We denied reargument but opened the judgment of affirmance and remanded "the case [to the habeas court] for further proceedings relating to whether there was good cause for [the petitioner's] failure to raise before trial the claim of unconstitutional jury composition that is the basis for his habeas petition." Jackson v. Commissioner of Correction, 219 Conn. 215, 217, 592 A.2d 910 (1991). On the remand, the habeas court concluded that there was not adequate cause to excuse the petitioner's failure to pursue the jury array challenge on direct appeal. Specifically, the habeas court concluded "that the petitioner has failed to show that there was good cause for his failure to raise before trial the claim of unconstitu tional jury composition as a result of having failed to pursue that claim on direct appeal." This appeal followed. In his original brief in this appeal, the petitioner contends that the habeas court improperly exceeded the scope of the remand by failing to answer the specific issue set forth in our order, and had instead, outside our mandate, predicated its decision on the petitioner's failure to pursue the jury array challenge on direct appeal. We agree with the petitioner that the habeas court exceeded the scope of the remand by analyzing the petitioner's procedural default on appeal, rather than considering whether there was sufficient cause for his failure to challenge properly the composition of the jury array at trial. Because an unexcused procedural default either at trial or on appeal would preclude the habeas court's consideration of the petitioner's jury array claim, however, the habeas court's focus on his procedural default on appeal, rather than his trial default, is not dispositive in these circumstances. In light of the habeas court's reliance on a legal ground outside the scope of the remand, and, after reviewing the record, including the history of the briefing in the first appeal from the habeas court's dismissal of the petition of habeas corpus, we concluded that the petitioner should be granted an opportunity to brief fully the issues relating to procedural default on direct appeal. Nevertheless, because no additional facts beyond those already found by the habeas court are necessary to analyze these legal issues, we concluded that an additional remand to the habeas court was not warranted. Instead, we ordered the parties to file simultaneous supplemental briefs on the following issues: "1. In a habeas corpus proceeding, is the cause and prejudice standard the appropriate standard by which to analyze a petitioner's failure to pursue a constitutional claim on direct appeal? 2. Did the habeas court properly conclude that there was insufficient cause for [the] petitioner's failure to pursue on direct appeal his claim that the composition of the jury array violated his constitutional rights?" These issues are dispositive of this appeal. I The petitioner first claims that the habeas court improperly adopted the cause and prejudice standard to analyze the petitioner's failure to pursue the jury array challenge on direct appeal. We disagree. Prior to 1991, we employed the deliberate bypass rule, as articulated in Fay v. Noia, supra, in order to determine the reviewability of constitutional claims in habeas corpus proceedings that had not been properly raised at trial or pursued on direct appeal. See, e.g., Vena v. Warden, 154 Conn. 363, 366-67, 225 A.2d 802 (1966). "In Fay v. Noia, supra, 438-39, the United States Supreme Court held that federal habeas corpus jurisdiction was not affected by the procedural default, specifically a failure to appeal, of a petitioner during state court proceedings resulting in his conviction. The court recognized, however, a limited discretion in the federal habeas judge to deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies. . . . This deliberate bypass standard for waiver required an intentional relinquishment or abandonment of a known right or privilege by the petitioner personally and depended on his considered choice. . . . A choice made by counsel not participated in by the petitioner does not automatically bar relief." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 411-12. In Wainwright v. Sykes, supra, however, the United States Supreme Court subsequently "rejected the sweeping language of Fay, which would make federal habeas review generally available to state convicts absent a knowing and deliberate waiver of the federal constitutional contention. The court upheld a state court's refusal to decide the merits of a claimed Miranda violation first raised in a posttrial motion and in state habeas corpus proceedings, contrary to a state contemporaneous objection rule. The court adopted as a new standard for federal habeas review . . . that [i]n a collateral attack upon a conviction, the petitioner must make not only a showing of cause for the defendant's failure to challenge the composition of the grand jury before trial, but also a showing of actual prejudice. Thus was born the Wainwright cause and prejudice standard for habeas review." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 412-13. In Johnson, the petitioner's original appeal from the judgment of the habeas court, we reconsidered, in light of Wainwright, whether the deliberate bypass was the appropriate standard by which to analyze the review-ability of habeas claims that were procedurally defaulted at trial. We decided, after a full review of the relevant considerations, to abandon the deliberate bypass standard of Fay v. Noia, supra, and to adopt the Wainwright cause and prejudice standard as the proper standard to determine the reviewability of such claims. In Johnson, however, we expressly did not reach the related issue of whether the cause and prejudice standard should replace the deliberate bypass rule for claims procedurally defaulted on appeal. We now conclude that the Wainwright cause and prejudice standard should be employed to determine the reviewability of habeas claims that were not properly pursued on direct appeal. In Johnson v. Commissioner of Correction, supra, we outlined the significant policy reasons for abandoning the deliberate bypass rule and adopting the cause and prejudice standard for claims procedurally defaulted at trial. First, as a general matter, we noted that "special problems . . . are likely to arise relating to the feasibility of a second trial when a conviction is set aside by a habeas court rather than by an appellate court. These problems are related mainly to the more extended delay of the second trial that frequently results from a reversal of a conviction by a habeas court. There is no statute of limitation or other time limit that would bar a habeas petition. United States v. Smith, 331 U.S. 469, 475, 67 S. Ct. 1330, 91 L. Ed. 1610 (1947). Ordinarily the petition may not be filed until appellate remedies have been exhausted . . . . An additional record must be created in the habeas court, which may require extensive testimony. If the petitioner is successful in overturning his conviction, another appeal is almost inevitable." Id., 415-16. "A direct appeal following a conviction, on the other hand, is subject to strict time limits at each stage of the proceeding. Except for extraordinary cases, an appeal in this state is ordinarily determined within approximately one year from the date it was filed. The greater time lapse that results when a second trial is ordered by a habeas court has a serious impact on the availability of witnesses and other evidence for the second trial. Memories fade with the passage of time, exhibits are lost, and other evidence is less likely to be available. Appellate counsel would have less incentive to raise on appeal all arguable constitutional claims of the defendant if another opportunity to raise such claims were available in the habeas court. We are convinced that these consequences would be sufficiently harmful to the administration of justice in this state as to require that [we depart from the application of the deliberate bypass rule] . "If deliberate bypass were the sole barrier to such review, it could seldom be invoked for a default at trial. It is not common practice and would be unduly cumbersome to establish a record in the trial court showing that the defendant had personally made a knowledgeable waiver of his constitutional procedural rights on each of the myriad occasions that arise during a criminal trial when such rights are involved. Most of these choices during trial, such as whether to move for suppression of evidence or to cross-examine a particular witness, must necessarily be left to counsel, subject to the requirement that his performance satisfy reasonable standards of competency. In those rare instances in which a deliberate bypass is found, of course, habeas review would be barred for that reason alone, apart from the cause and prejudice standard." Id., 416-17. The "special problems" regarding procedural defaults at trial that we noted in Johnson apply equally to procedural defaults on direct appeal, and militate in favor of our adoption of one standard by which to measure procedural defaults occurring at trial or on direct appeal. As the United States Supreme Court has noted in specifically adopting the cause and prejudice standard to analyze procedural defaults on direct appeal: "A State's procedural rules serve vital purposes at trial, on appeal, and on state collateral attack. . . . [Such rules] '[afford] . . . the opportunity to resolve the issue shortly after trial, while evidence is still available both to assess the defendant's claim and to retry the defendant effectively if he prevails in his appeal. . . . This type of rule promotes not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.' " Murray v. Carrier, 477 U.S. 478, 490-91, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986); see also Roman v. Abrams, 822 F.2d 214, 222-23 (2d Cir. 1987) (habeas review of jury selection challenge unavailable absent showing of cause and prejudice for petitioner's failure to raise claim on direct appeal), cert. denied, 489 U.S. 1052, 109 S. Ct. 1311, 103 L. Ed. 2d 580 (1989). We also recognize that the judicial system's legitimate interest in procedural rules is undermined regardless of whether the breach results from counsel's "ignorance or inadvertence rather than a deliberate decision, tactical or not, to abstain from raising the claim." Murray v. Carrier, supra, 491. Just as with procedural defaults occurring at trial, the costs of violation of our procedural rules are incurred regardless of the kind of attorney error that led to the failure of counsel to pursue a claim on appeal. Furthermore, in a practical sense, the cause and prejudice standard is at least equally appropriate to the failure to raise a claim on appeal as it is to the failure to raise a claim in the trial court. One of the underlying rationales for preferring the cause and prejudice standard to the deliberate bypass rule, regarding trial court defaults, is that it is unrealistic and inconsistent with the proper role of trial counsel to require consultation with the client regarding every legal or tactical consideration. The same is true of appellate counsel. It is unrealistic and inconsistent with the proper role of appellate counsel to require consultation with the client, and presumably to secure the client's consent, with respect to the decision of whether to raise or forego particular legal claims on appeal. Indeed, applying the deliberate bypass rule to such decisions of appellate advocacy would create the incentive for counsel to remain silent, rather than to confer with the client because ultimately the client would be better served in a habeas action by remaining ignorant of potential claims on direct appeal. Consequently, contrary to the petitioner's claim, attorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of appellate procedure. Cf. Valeriano v. Bronson, 209 Conn. 75, 85, 546 A.2d 1380 (1988) (ineffective assistance of counsel claim for failing to raise claim on direct appeal automatically satisfies the deliberate bypass requirement). In light of these considerations, therefore, we conclude that the cause and prejudice standard should be employed to determine the review-ability of a habeas claim that was not properly pursued on direct appeal. II The petitioner next claims that, even if the cause and prejudice standard is the appropriate standard by which to analyze his failure to pursue his claim on direct appeal, the habeas court improperly concluded that there was insufficient cause for the petitioner's failure to pursue on direct appeal his claim that the composition of the jury array violated his constitutional rights. We are unpersuaded. As noted above, the trial court denied Buckley's request for a continuance for additional time to subpoena witnesses whose testimony was necessary for his jury array challenge. It was this denial that prevented the petitioner from asserting his jury array challenge at trial. The petitioner, however, did not challenge this denial on appeal. We have repeatedly recognized, however, that the denial of a request for a continuance is appealable. See, e.g., State v. Walker, 215 Conn. 1, 9, 574 A.2d 188 (1990). Consequently, the petitioner was free to challenge the denial of the continuance on direct appeal if he believed that the denial had been improper under the circumstances of the case. If he then convinced the reviewing court that the denial was reversible error, he would have been entitled, on remand to the trial court, to present the evidence regarding the jury array that he had originally intended to present. Under that scenario, however, if his jury array challenge were successful, a new trial would have ensued shortly after the direct appeal, rather than now, eleven years later. Despite the opportunity to challenge the denial of the continuance on direct appeal, the petitioner claims that adequate cause existed for this failure because a factor external to the defense prohibited him from challenging the array at trial. This claim is predicated on prior decisions that have found adequate cause for a petitioner's procedural default in circumstances in which the default is not attributable to attorney error. See, e.g., Murray v. Carrier, supra, 488; Reed v. Ross, 468 U.S. 1, 16, 104 S. Ct. 2901, 82 L. Ed. 2d 1 (1984); Brown v. Allen, 344 U.S. 443, 486, 73 S. Ct. 397, 97 L. Ed. 469 (1953). The United States Supreme Court has summarized the rule as follows: "So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, [466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default. Instead, we think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule. Without attempting an exhaustive catalog of such objective impediments to compliance with a procedural rule, we note that a showing that the factual or legal basis for a claim was not reasonably available to counsel . or that 'some interference by officials' . . . made compliance impracticable, would constitute cause under this standard." Murray v. Carrier, supra. In the present case, the petitioner argues that the trial court's refusal to allow him additional time to subpoena the witnesses necessary to present his jury array challenge constituted "some interference by officials" thereby creating adequate cause for his failure to challenge the array at trial. Without expressing any opinion as to the legal accuracy of this claim, we simply note that the petitioner's argument misses the point. Even if the denial of the continuance constituted cause for the petitioner's failure to challenge the jury array at trial, the trial court's action did not prohibit the petitioner from raising the claim on direct appeal that the trial court had abused its discretion by failing to grant the continuance. To hold otherwise would be to undermine the important policies underlying our appellate procedural rules and our interest in the timely and efficient resolution of claims at trial and on appeal. Consequently, the petitioner's claim of cause based on the "interference by officials," even if adequate to excuse his procedural default at trial, is not sufficient cause for his procedural default on direct appeal. The judgment is affirmed. In this opinion Peters, C. J., Callahan and NorCOTT, Js., concurred. The petitioner appealed to the Appellate Court, upon the trial court's grant of certification pursuant to General Statutes § 52-470 (b), and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). The petitioner had previously been granted a two week continuance that began after the jury had been selected but prior to trial. The petitioner, a black male, claimed that members of his race were underrepresented on his jury array in violation of his equal protection rights guaranteed by the fourteenth amendment to the United States constitution and article first, § 20, of the Connecticut constitution. The habeas court issued a lengthy memorandum of decision setting forth its reasons for denying the petition. The habeas court first analyzed whether the "cause and prejudice" standard or the "deliberate bypass" rule was the appropriate standard by which to decide whether relief was precluded by the petitioner's failure to challenge the jury array on direct appeal. Although the habeas court concluded that, at the time of his decision, the deliberate bypass rule was still the law of Connecticut, it noted that a pending appeal in this court raised this precise issue. The court therefore analyzed the claim under both rules and concluded that: (1) there was sufficient cause to excuse his failure to challenge the array on direct appeal but that the petitioner had not made the requisite showing of prejudice; and (2) the habeas claim was not barred under the deliberate bypass rule. In light of its conclusion that the petitioner had not deliberately bypassed appellate review of his jury array challenge, the habeas court then analyzed the merits of the petitioner's habeas claim. After analyzing the relevant evidence and law, the habeas court concluded that the petitioner had failed to demonstrate that the composition of his jury array violated his constitutional rights. We recognize that this statement is somewhat ambiguous as to whether the habeas court predicated its decision on a procedural default at trial or on a procedural default on direct appeal. Both parties agree, however, and the entire memorandum of decision plainly demonstrates, that the habeas court's analysis focused on the petitioner's failure to pursue the jury array challenge on direct appeal. We have previously recognized that, " '[i]n carrying out a mandate of this court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion. . It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning. . . . The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein.' " State v. Lafferty, 191 Conn. 73, 76, 463 A.2d 238 (1983). We are puzzled, to say the least, by the dissent's truculent: (1) fear that we have closed the door to a substantial claim of innocence in fact by a habeas corpus petitioner; and (2) need to remind us of the finality of death. Neither of these issues is before us in this appeal. This record is bereft of any claim of actual innocence by the petitioner, and this court has not yet even considered a death penalty case on direct appeal, let alone on habeas corpus review. In adopting the cause and prejudice standard for procedural defaults occurring at trial, we recognized that, particularly in jury array challenges, the deliberate bypass rule would encourage astute counsel to "sandbag" the court by saving their claims until habeas review. Johnson v. Commissioner of Correction, 218 Conn. 403, 418, 589 A.2d 1214 (1991). This possibility exists because if the time limitations for bringing a challenge at trial were followed, any constitutional defect in the array could be cured, and the trial could be continued. Consequently, "[sjtrong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult." (Internal quotation marks omitted.) Id. The same danger of "sandbagging" would exist, albeit to a lesser extent, if we were to continue to apply the deliberate bypass rule to procedural defaults on appeal. The defendant's counsel on appeal might well conclude that the best strategy is to raise a few promising claims on appeal, while reserving others for later habeas review should the direct appeal be unsuccessful. See Murray v. Carrier, 477 U.S. 478, 492, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986). The petitioner has not cited a single case in which a court considered the question of whether the trial court's decision on a motion could itself be "interference by officials" under the cause and prejudice standard. The cases cited by the petitioner for this proposition either concluded that the petitioner had, in fact, satisfied the state's procedural rules; see, e.g., James v. Kentucky, 466 U.S. 341, 348, 104 S. Ct. 1830, 80 L. Ed. 2d 346 (1984); Carbajol v. Fairman, 700 F.2d 397, 399 (7th Cir. 1983); Huffman v. Wainwright, 651 F.2d 347, 352 (5th Cir. 1981); Pedrero v. Wainwright, 590 F.2d 1383, 1390 (5th Cir.), cert. denied, 444 U.S. 943, 100 S. Ct. 299, 62 L. Ed. 2d 310 (1979); White v. Estelle, 566 F.2d 500, 501 n.1 (5th Cir. 1978); or focused on the action of government officials other than the trial court itself. See, e.g., Julius v. Jones, 875 F.2d 1520, 1525 (11th Cir.) (prosecutor's failure to produce Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 [1963] material), cert. denied, 493 U.S. 900, 110 S. Ct. 258, 107 L. Ed. 2d 207 (1989); Buffalo v. Sunn, 854 F.2d 1158, 1165-66 (9th Cir. 1988) (pro se petitioner unable to file state petition for certification because he had been held in "lock down" by prison officials). Presumably, therefore, the petitioner's argument in the present case may devolve into the contention that there in fact was no procedural fault at trial because the petitioner had adequately attempted to bring a challenge to the jury array. Again, because we predicate our decision on the petitioner's procedural default on appeal, we need not address this argument.

The defendant's petition for certification for appeal from the Appellate Court, 32 Conn. App. 1 (AC 11466), is granted, limited to the following issue: "Does the trial court have jurisdiction to reconsider the defendant's motion for judgment of acquittal after the defendant had begun serving his sentence?"

Santaniello, J. The defendant, Bernard Williams, was convicted, after a jury trial, of one count of felony murder in violation of General Statutes § 53a-54c and sentenced to a term of imprisonment of sixty years. He appeals directly to this court pursuant to General Statutes § 51-199 (b) (3). On appeal, the defendant claims that the trial court improperly: (1) refused to grant his motion for a new trial based upon the failure adequately to reconstruct the testimony contained in a missing trial transcript; (2) allowed the state to introduce into evidence a videotape of the crime scene; and (3) failed to suppress certain statements made by him to police officers. We affirm. The jury could reasonably have found the following facts. On the evening of June 6,1988, the victim, who had parked her car in the Bloomingdale's parking garage in Stamford, had been shopping at Bloomingdale's. At approximately 7 p.m., a shopper returned to the garage and discovered the victim lying facedown in a pool of blood near the open trunk of the victim's car. An autopsy revealed that she had bled to death as a result of five stab wounds about the neck region. The police secured and searched the crime scene. The victim's recent purchases, purse and watch were not found in the immediate area or in her car. The police found a silver colored watchband extension pin near the perimeter of the crime scene. The police took black and white photographs and made a videotape of the crime scene. The following day, a Bloomingdale's employee found, in one of the boys' dressing rooms, a shopping bag containing the victim's purse and the items purchased by her on the previous evening. Stains on these items contained blood that was consistent with the victim's blood type. On the evening of the murder, the defendant, on four separate occasions, told acquaintances that: (1) he had done something at Bloomingdale's that he should not have done; (2) he had killed somebody at Bloomingdale's; (3) he had done something to a woman and had gotten money and a watch from her; and (4) he had killed a woman in the parking lot at Bloomingdale's. The defendant also showed two of these acquaintances a watch matching the description of the victim's watch. One acquaintance noted that the side of the watchband was broken where the watchband connected to the face and that there was a red spot on the watch. Several days after the murder, the defendant had a second conversation with one of his acquaintances during which he described the murder in great detail. I The defendant first claims that the trial court improperly denied his motion for a new trial that was based upon the failure adequately to reconstruct the testimony contained in a missing trial transcript. We disagree. On March 15,1990, the defendant requested a copy of the trial transcript. In the late fall of 1991, the court monitor informed the defendant that two tapes, containing the trial proceedings of the afternoon of October 31, 1989, were missing. The defendant promptly filed a motion for a new trial on the ground that a complete transcript of the trial was unavailable. The missing tapes contained the testimony of witnesses who had been examined concerning the introduction by the state of various exhibits, including a diagram of the parking garage, photographs of the crime scene and a videotape of the crime scene. On November 15, December 18 and December 20, 1991, the trial court conducted hearings in order to attempt to reconstruct the proceedings that were contained on the missing tapes. At the hearings, the witnesses who had testified on the afternoon of October 31,1989, testified as to their recollection of the testimony they had given that afternoon. Notes taken by the court, counsel for both parties, the court monitor and other observers of the proceedings also became part of the reconstructed record. Each -witness testified that the exhibits that were introduced at the hearings were accurate to the best of his or her recollection and, although each witness could not state with certainty that the exhibits included the entire testimony, each witness could recall nothing that had been omitted. The trial court held that "the record has been sufficiently reconstructed to allow meaningful and effective appellate review" and denied the defendant's motion for a new trial. The absence of a portion of the trial transcript does not mandate a new trial. A new trial is required only if "the proceedings cannot be sufficiently reconstructed to allow effective appellate review of the claims raised by the defendant." State v. Vitale, 190 Conn. 219, 223, 460 A.2d 961 (1983); see also State v. Stafford, 223 Kan. 62, 64, 573 P.2d 970 (1977); Smith v. State, 291 Md. 125, 137, 433 A.2d 1143 (1981); Commonwealth v. Harris, 376 Mass. 74, 77, 379 N.E.2d 1073 (1978); Lopez v. State, 105 Nev. 68, 76, 769 P.2d 1276 (1989); People v. Glass, 43 N.Y.2d 283, 286-87, 372 N.E.2d 24, 401 N.Y.S.2d 189 (1977). Although the state must furnish an indigent defendant with a trial record adequate to allow meaningful review of his claims; Draper v. Washington, 372 U.S. 487, 499, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963); the state is not required to furnish a complete verbatim transcript. Mayer v. Chicago, 404 U.S. 189, 194, 92 S. Ct. 410, 30 L. Ed. 2d 372 (1971). Possible substitutes include "[a] statement of facts agreed to by both sides, [or] a full narrative statement based perhaps on the trial judge's minutes taken during trial or on the court reporter's untranscribed notes . . . ." Draper v. Washington, supra, 495. The sufficiency of a transcript to enable the appellate courts to review the issues on appeal is a matter of fact, because the trial court is in the best position to determine whether the reconstructed record adequately reflects what occurred at the trial. An appellate court should affirm a trial court's finding that the reconstructed record was sufficient unless the appellate court finds that the trial court's determination was "clearly erroneous." United States v. Carrillo, 902 F.2d 1405, 1410 (9th Cir. 1990). In determining whether a reconstructed record is sufficient, the trial court considers various factors, including the nature of the case, the claim of error advanced by the defendant, the availability of witnesses and exhibits from the original trial, the length of time that has passed, the length of the missing portion of the record and whether the defendant is represented by different counsel on appeal. See, e.g., Commonwealth v. Harris, supra, 78-79 (adequate opportunity to reconstruct entire trial transcript because trial was eighteen months earlier, trial judge and both counsel available, all witnesses and exhibits available and summaries of arguments and testimony existed); Lopez v. State, supra (one day's transcript containing the testimony of six witnesses could be adequately reconstructed from notes of two state's attorneys and two courtroom observers even though no notes included any objections by the defendant); People v. King, 160 App. Div. 531, 532, 554 N.Y.S.2d 517, appeal denied, 76 N.Y.2d 847, 559 N.E.2d 1291, 560 N.Y.S.2d 132 (1990) (reconstructed record of state's case based on notes of trial court and prosecutor's testimony valid even though witnesses were not called to testify at hearing). In the case presently before this court, the trial court did everything possible to reconstruct the record. The trial court incorporated into the reconstructed record its notes, the log of the courtroom clerk and the notes of the courtroom monitor, the notes of both counsel and the notes of two courtroom observers. In addition, the witnesses who had testified on the afternoon of October 31,1989, were called to testify as to their recollection of the testimony they had given that afternoon. In its memorandum of decision on the defendant's motion for a new trial, the trial court stated that "this court is satisfied that the record has been sufficiently reconstructed so as to provide the defendant with a near perfect record with which to pursue his appeal." This determination of the trial court was not clearly erroneous. The defendant, relying on two Wisconsin cases, claims that the reconstructed record must be adequate beyond a reasonable doubt. Most jurisdictions, however, require only that the reconstructed record afford the defendant effective appellate review. State v. Vitale, supra; see, e.g., Bell v. State, 296 Ark. 458, 463, 757 S.W.2d 937 (1988) (reconstructed record must be "adequate to inform [court] of what transpired at . . . trial"); Cole v. United States, 478 A.2d 277, 280-81 (D.C. App. 1984) (record must be sufficient to permit meaningful appellate review); Craig v. State, 510 So. 2d 857, 861 (Fla. 1987) (reconstruction must be "reasonably accurate"); State v. Stafford, supra, 64 (reconstructed record must afford effective appellate review); Lopez v. State, supra, 76, 86 (reconstructed record must be adequate for court to perform meaningful appellate review; defendant must demonstrate that reconstructed transcript "is materially less than essentially complete and accurate"); State v. Jonas, 793 P.2d 902, 910 (Utah App. 1990) (record must be "functionally adequate for review"). Additionally, most jurisdictions hold that before a defendant can establish that he is entitled to a new trial on the ground that the reconstructed record is inadequate to review his claims, he must demonstrate specific prejudice that results from having to address his claims on appeal with the reconstructed record. See, e.g., Bell v. State, supra, 463 (defendant must demonstrate "prejudice resulting from the state of the record"); State v. Wright, 97 Idaho 229, 231, 542 P.2d 63 (1975) (defendant must demonstrate "specific prejudice resulting from" failure to reconstruct record); Simpson v. Commonwealth, 759 S.W.2d 224, 228 (Ky. 1988) (showing of "prejudicial error" required); Smith v. State, supra, 135 ("defects must be of a prejudicial character"); Commonwealth v. Chatman, 10 Mass. App. 228, 232, 406 N.E.2d 1037 (1980) (defendant must "come forward with articulable claims [by] which the reconstruction may be judged"); State v. Borden, 605 S.W.2d 88, 92 (Mo. 1980) (defendant must demonstrate prejudice); State v. Dupris, 373 N.W.2d 446, 449 (S.D. 1985) (appellant must show "specific error or prejudice" resulting from failure to record entire proceedings of trial); State v. Helmick, 169 W. Va. 94, 100, 286 S.E.2d 245 (1982) (defendant must demonstrate error or prejudice that has resulted from and is specifically related to the missing portion of the record); but see Van White v. State, 752 P.2d 814, 821 (Okla. Crim. 1988) (complete stenographic record required in all capital proceedings). The defendant has identified no specific claim of error that the court will be unable effectively to review on the basis of the reconstructed record. The defendant claims that any objections he may have made to the introduction of exhibits and, in particular, to the introduction of the videotape are unavailable. The officer who had been questioned regarding the videotape recollected being asked by the defendant about breaks in the time superimposed on the videotape and the chain of custody of the videotape. As the trial court noted in its memorandum of decision, any concerns about tampering with the videotape can be resolved by comparing the tape to the photographs taken of the crime scene. The defendant also claims that he has been prejudiced because the reconstructed record does not reflect any inflammatory remarks that may have been made that afternoon either by the witnesses or by courtroom observers. This claim is entirely speculative. The purpose of the reconstructed record is to enable the appellate court effectively to review identified claims of error; the record is not presumed to be "complete enough to dissect in the hope of discovering hitherto unnoticed issues or errors." Commonwealth v. Hunt, 22 Mass. App. 932, 933, 493 N.E.2d 884 (1986). The reconstructed record in this case adequately presents for review the issue of the admissibility of the videotape, the only issue specifically identified by the defendant that is connected with the videotape. The trial court, therefore, properly denied the defendant's motion for a new trial on the ground that the reconstructed record was sufficient to allow meaningful and effective appellate review. II The defendant next claims that the trial court improperly allowed the state to introduce a videotape of the crime scene into evidence because the probative value of the videotape was outweighed by its prejudicial impact on the jury. We disagree. At approximately 7:45 p.m. on June 6,1988, one of the police officers arrived at the crime scene with a video camera. The officer was instructed to videotape the crime scene, beginning outside the parking garage, proceeding inside and ending at the location of the body. By the time the officer reached the location of the body, the medical examiner had turned the body over to a faceup position. The videotape, therefore, showed the body in the faceup position, rather than the facedown position in which it had been found. The defendant contends that the changed position of the body in the videotape created an inaccurate portrayal of the crime scene and "highlighted the gruesomeness of the crime." Although the defendant emphasizes that the videotape should have been excluded as excessively prejudicial, that claim is best addressed by first reviewing the reasons why photographic evidence is admissible. This court has consistently held that "photographic evidence is admissible where the photograph has 'a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. Note, 73 A.L.R.2d 769, 787.' State v. DeJesus, [194 Conn. 376, 381, 481 A.2d 1277 (1984)]. There is no requirement in this state that a potentially inflammatory photograph be essential to the state's case in order for it to be admissible; rather, 'the test for determining the admissibility of the challenged evidence is relevancy and not necessity. State v. Piskorski, 177 Conn. 677, 701, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).' State v. Haskins, 188 Conn. 432, 453, 450 A.2d 828 (1982)." State v. Doehrer, 200 Conn. 642, 649, 513 A.2d 58 (1986). A potentially inflammatory photograph may be admitted if the court, in its discretion, determines that the probative value of the photograph outweighs the prejudicial effect it might have on the jury. State v. Doehrer, supra; State v. DeJesus, supra, 382; State v. Haskins, supra, 452-53. The determination of the trial court will not be disturbed unless the trial court has abused its discretion. State v. DeJesus, supra; State v. Piskorski, supra, 701. After viewing both the black and white photographs and the videotape, the trial court stated that the videotape was the most accurate, truthful and representative evidence of the crime scene. The trial court did not find the videotape so inflammatory that it would unduly prejudice the defendant and influence the jury's ultimate decision. The court also stated that any inaccuracy in the videotape resulting from movement of the body went to the weight given by the jury to the videotape, not to the admissibility of the videotape. "[T]he prosecution, with its burden of establishing guilt beyond a reasonable doubt, is not to be denied the right to prove every essential element of the crime by the most convincing evidence it is able to produce." State v. Piskorski, supra, 701-702. Accordingly, we conclude that the trial court did not abuse its discretion by allowing the videotape into evidence. Ill Finally, the defendant claims that the trial court improperly denied his motion to suppress certain statements made by him to police officers. The defendant claims that the statements were made during a custodial interrogation without the benefit of Miranda warnings. We disagree. "Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation. Miranda v. Arizona, [384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)]. Custodial interrogation is 'questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' Miranda v. Arizona, supra; see State v. Januszewski, 182 Conn. 142, 158, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). Despite this definition of custodial interrogation, '[w]hat constitutes police custody for purposes of the Miranda warnings is not always self-evident. One thing is clear: the Miranda court was concerned with interrogation that takes place in a police dominated environment containing "inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Miranda v. Arizona, supra, 467.' State v. Januszewski, supra. In other words, 'police officers are not required to administer Miranda warnings to everyone whom they question.' State v. Januszewski, supra, 159." State v. Brown, 199 Conn. 47, 51-52, 505 A.2d 1225 (1986). "The defendant had the initial burden of proving custodial interrogation. United States v. Charles, 738 F.2d 686, 692 (5th Cir. 1984); State v. Doehrer, [supra, 647]; State v. Vitale, [197 Conn. 396, 409, 497 A.2d 956 (1985)]. The trial court's determination that the defendant was not in custody is a finding of fact. State v. Ostroski, 186 Conn. 287, 292, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982). That finding of fact by the trial court will not be overturned unless it is clearly erroneous. Id.; see Practice Book § 4061; State v. Young, 191 Conn. 636, 652, 469 A.2d 1189 (1983). We will, however, carefully review the record to ascertain whether the trial court's finding is supported by substantial evidence. State v. Toste, 198 Conn. 573, 580, 504 A.2d 1036 (1986); State v. Alexander, 197 Conn. 180, 185, 496 A.2d 486 (1985)." State v. Pittman, 209 Conn. 596, 606, 553 A.2d 155 (1989). The record includes the following facts. At approximately 10 p.m. on the evening of the murder, a police officer who had been working an overtime shift in plain clothes was asked to "work the streets" for information about the murder at the Bloomingdale's garage. The officer encountered an informant in a local pool hall. The informant told the officer that a man called "Blue" had been in the pool hall earlier that evening and had told the informant that he had done something at Bloomingdale's. The informant also provided the officer with a description of "Blue." After receiving this information, the officer returned to the police station, changed into his uniform for his regular shift and returned to the same neighborhood with his partner to follow up on the lead. Near the pool hall, the officers noticed an individual matching the description provided by the informant. The individual had the word "Blue" tattooed on his chest. At trial, this individual was identified as the defendant. The officers parked their vehicle and approached the defendant on the crowded street. In response to their inquiry, the defendant agreed to answer their questions. At no point was the defendant frisked, nor did he indicate that he did not waht to talk to the officers or that he wanted to leave. During the conversation, one officer stood a few feet in front of the defendant and asked him questions. The other officer stood about five feet away, behind and to the left of the defendant. With the defendant's consent, the officers used their flashlights to check the defendant's hands and clothing for signs of blood. After the conversation, described by one officer as a conversation between old friends, the officers thanked the defendant and left. The trial court denied the defendant's motion to suppress any statements he made to the police on the night of the murder. The trial court stated: "I find, as a matter of fact, that the record is devoid of evidence that would allow me to conclude that Mr. Williams, or a reasonable person in his situation, would not have felt free to leave or walk away from that situation." The defendant spoke to the police officers on a crowded street. He was friendly and responsive. The record contains no evidence that the defendant was threatened or coerced by the police. After carefully reviewing the record, we find no support for the defendant's claim that he was in custody. See, e.g., State v. Rasmussen, 225 Conn. 55, 77, 621 A.2d 728 (1993) (defendant who voluntarily accompanied state police to barracks and talked with them in conference room was not in custody); State v. Brown, supra, 53 (defend ant was not in custody even though officer drove police vehicle onto sidewalk within eight feet of defendant and carried portable radio when he left vehicle to speak to defendant). The defendant also seeks review of this claim under article first, §7 and 8, of the Connecticut constitution. The "unlawful, forcible detention of a person in the street" constitutes a seizure under the state constitution. (Emphasis in original.) State v. Oquendo, 223 Conn. 635, 652, 613 A.2d 1300 (1992). "[W]hat starts out as a consensual encounter becomes a seizure if, on the basis of a show of authority by the police officer, a reasonable person in the defendant's position would have believed that he was not free to leave." Id., 653. As stated above, we agree with the determination of the trial court that the defendant was not seized; a reasonable person in the defendant's position would have felt free to leave at any point during the conversation with the police officers. The defendant, therefore, was not seized under article first, § 7, of the Connecticut constitution. Additionally, we have held that Miranda warnings are independently required under article first, § 8, of the Connecticut constitution to the same extent that they are required under the federal constitution. State v. Barrett, 205 Conn. 437, 447, 534 A.2d 219 (1987). Miranda warnings, therefore, are required only for a custodial interrogation. We conclude that the defendant's claim also fails on state constitutional grounds. Accordingly, we affirm the trial court's denial of the defendant's motion to suppress the statements he made to the police. Whether the defendant's claim is viewed under the federal or under the state constitution, the trial court's findings that there was no custodial interrogation was supported by the record and makes the defendant's suppression motion unsustainable. The judgment is affirmed. In this opinion the other justices concurred. General Statutes § 53a-54c provides: "A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery . . . and, in the course of and in furtherance of such crime or flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants. . . ." General Statutes § 51-199 (b) (3) provides: "The following matters shall be taken directly to the supreme court . (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years." Eight exhibits were introduced into evidence at the hearings: the trial court clerk's log indicating the time frames within which the witnesses had testified and the exhibits that had been entered into evidence; a transcript of questions written down by the court monitor while she was recording the proceedings with answers extracted from the state's notes; an additional copy of the transcript of the handwritten questions from the court monitor, without answers; the defense counsel's notes; the trial court's notes; the assistant state's attorney's notes; the notes of an inspector who was employed by the state; and the notes taken by the victim's son while he was observing the proceedings. The Wisconsin Appellate Court stated: "In determining whether the trial court can resolve the dispute between the parties, the trial court must be satisfied to the same level of proof as required during the trial stage. In other words, in a criminal matter, the trial court must be satisfied beyond, a reasonable doubt, that the missing testimony has been properly reconstructed." (Emphasis in original.) State v. DeLeon, 127 Wis. 2d 74, 82, 377 N.W.2d 635 (1985). In DeLeon, fifteen minutes of testimony, including the testimony of a social worker, was missing. One of the defendant's claims on appeal was ineffective assistance of counsel regarding the examination of the social worker. Id., 77. In State v. Perry, 136 Wis. 2d 92, 95-96, 401 N.W.2d 748 (1987), a significant portion of the final two days of trial, including the entire testimony of two witnesses and portions of the testimony of five other witnesses, was missing. The Wisconsin Supreme Court stated: "DeLeon emphasizes that this procedure does not allow for speculation, but that the transcript must be established in accordance with the burden of proof required in the case, i.e., in a criminal case, beyond a reasonable doubt." Id., 102. In both DeLeon and Perry, the missing testimony concerned whether the defendant had committed the crime with which he had been charged. The testimony did not establish a foundation for the introduction of evidence of the crime scene. The defendant has not provided, nor has our research revealed, any case in which a court has applied the "beyond a reasonable doubt standard" to the type of testimony that has been reconstructed in the present case. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The state argues that the defendant has provided no independent state constitutional analysis and that we should decline to review the claim on state constitutional grounds. Although the defendant has provided a less than extensive analysis, he has presented a claim under the state constitution and, accordingly, we will consider his claim.

Palmer, J. The dispositive issue in this appeal is whether the trial court had subject matter jurisdiction to entertain the application of the plaintiffs, Polymer Resources, Ltd., and Leslie M. Klein (Polymer), for a temporary injunction restraining the defendant, Timothy R.E. Keeney, the commissioner of environmental protection (commissioner), from requiring Polymer to conduct certain emission control testing at its manufacturing facility in Farmington. The trial court concluded that it had jurisdiction over Polymer's application for injunctive relief and, after a hearing, granted that application in part. The commissioner sought and received permission to file an immediate expedited appeal from that portion of the trial court's order granting Polymer injunctive relief. The commissioner claims that the trial court lacked subject matter jurisdiction to entertain Polymer's application for a temporary injunction because Polymer had failed to exhaust its administrative remedies. We agree with the commissioner and therefore reverse the judgment of the trial court. Polymer processes plastic pellets at its thermoplastics manufacturing facility in Farmington. On April 9, 1992, after investigation of the gaseous emissions resulting from Polymer's manufacturing processes, the commissioner issued an ex parte cease and desist order (order) against Polymer pursuant to General Statutes § 22a-7. In that order, the commissioner found that the manufacturing process employed by Polymer had resulted in the emission of certain substances into the ambient air that "can cause and are causing or are likely to cause damage to the health of persons in the vicinity of the site, including headaches, throat inflammation, nose irritation, exacerbations of chronic respiratory conditions including asthma and chronic obstructive pulmonary disease, and other respiratory or pulmonary diseases and symptoms," and that those emissions were "likely to result in imminent and substantial damage to the public health." The order directed Polymer to cease any manufacturing process that resulted in the emission of the specified substances, and prohibited Polymer from resuming such processing until it had: (1) installed pollution control equipment that adequately controlled emissions from its manufacturing processes; (2) conducted stack testing of its emissions in a manner and for a length of time approved by the commissioner; and (3) submitted a detailed written report for the commissioner's approval certifying that air emissions from the site would not result in imminent and substantial damage to the public health. The order also expressly authorized the commissioner to approve or disapprove any "document, report or other action" concerning the control of emissions into the air at the site, or to approve any such document, report or action "with such conditions or modifications as the commissioner deems necessary to carry out the purposes" of the order. The order further required Polymer, upon notification by the commissioner that any document, report or action was deficient, to correct that deficiency to the satisfaction of the commissioner. Polymer ceased its plastic processing operations upon receipt of the order. On April 16, 1992, the commis sioner commenced a hearing pursuant to § 22a-7 (c) concerning the issuance of the ex parte order. On April 27, 1992, however, after several days of testimony before the department of environmental protection (DEP) hearing officer, Polymer notified the commissioner that it would no longer contest the order and, although not conceding the underlying findings of the commissioner, would agree to be bound by the terms of the order. The commissioner agreed that Polymer's acceptance of the terms of the order obviated the need for any further testimony before the hearing officer. On May 1, 1992, the hearing officer, therefore, filed a final administrative decision and order (final order), which specifically incorporated the provisions of the April 9,1992 order. The final order also contained the hearing officer's finding that the "record lacks sufficient technical evidence to support imposition of an additional requirement for [precontrol]led stack testing." By letter dated May 14, 1992, the commissioner approved, with modifications, Polymer's proposed two phase stack testing plan. The plan provided that upon completion of the first phase of testing, which was to last a total of forty days, Polymer was to cease its manufacturing operations and to submit a plan for second phase testing. Upon approval by the commissioner of a second phase plan, Polymer would be authorized to resume its manufacturing operations. The May 14, 1992 letter also directed Polymer to cease its manufacturing operations if any one of several events occurred, including the detection by DEP personnel of any odor emanating from the stack of Polymer's plant. On May 18,1992, Polymer resumed its manufacturing operations in a manner consistent with the terms of the first phase testing plan and thereafter submitted reports to the commissioner as required by the final order. By letter dated June 25, 1992, however, the commissioner ordered Polymer immediately to cease its manufacturing operations because on that date DEP personnel had detected an odor at the stack of Polymer's plant. The commissioner explained that the "presence of an odor is an indication that the control systems at the facility were not functioning properly, and were allowing substances which are likely to damage public health to escape into the air." In his June 25, 1992 letter, the commissioner invited Polymer to submit a report explaining the reason for the odor and a proposal to rectify the problem, "taking into consideration the apparent premature failure of the control systems, [and] consistent health complaints during the course of testing." The commissioner prohibited Polymer, however, from resuming its manufacturing operations and stack testing procedures until he had expressly authorized Polymer to do so. Polymer ceased its manufacturing operations as directed and submitted a report to the commissioner, dated June 29, 1992, that sought to allay the commissioner's concerns about the odor detected at Polymer's stack. This report suggested a modification of the stack testing plan that had been previously approved by the commissioner and implemented by Polymer. By letter dated July 2, 1992, the commissioner agreed that "a modified testing program is necessary," but rejected Polymer's proposed revised testing plan. The commissioner explained that "[t]he odor detected at the stack on June 25, 1992, and the consistent presence in the test results of an unknown and unexpected hydrocarbon, dictate a modification of the testing approach. . . . [Ujnless different data are collected, no person will be able to identify these unknown substances. It is presently impossible to conclude that the unknown hydrocarbon does not pose a health threat. Because of the unexpected presence of the unique odor at the stack on June 25,1992 . . . it is similarly impossible to conclude that non-odorous, harmful chemicals are being controlled by the pollution control equipment. . . . We are not confident that [Polymer's revised] plan will adequately protect the health of the public given these unexpected and presently inexplicable circumstances." The commissioner's revised testing program required the testing of emissions before they entered the pollution control system in the stack in order "to identify all of the compounds that could potentially be released during the processing of polymers . in order to know what to test for at the outlet of the system." Several days after it had received the commissioner's letter of July 2, 1992, Polymer submitted additional reports to the commissioner. Polymer contended that precontrol stack testing was unnecessary and unreasonably costly, that resumption of the manufacturing process would not pose any risk to the public health, and that any odor from Polymer's stack emissions would be imperceptible to anyone off-site. In an effort to reach a compromise acceptable to the parties, DEP personnel and representatives of Polymer met to discuss the reports and Polymer's objections to the requirements of the July 2, 1992 letter. On July 13, 1992, however, before the completion of these discussions, Polymer sought and obtained an ex parte temporary restraining order from the trial court, Dean, J., prohibiting the commissioner from (1) interfering with Polymer's operations as permitted prior to the issuance of the July 2,1992 letter, and (2) requiring Polymer to perform precontrol stack testing. Subsequently, a hearing was held on Polymer's application for a temporary injunction, which had been filed by Polymer with its application for a temporary restraining order. After thirty-three days of testimony, the trial court, Nigro, J., denied the commissioner's renewed motion to dismiss for failure to exhaust available administrative remedies, and granted Polymer's application in part. Although it acknowledged that the testimony produced "a conflict among distinguished experts who have each presented impressive credentials," the court found that the commissioner's require ment of precontrol testing was "unnecessary and unreasonable," that compliance with that requirement would cause Polymer "irreparable loss," and that Polymer had no adequate remedy at law. The court therefore enjoined the commissioner from requiring Polymer to conduct precontrol stack testing. The court also enjoined the commissioner from requiring Polymer to cease its manufacturing operations during any period of time needed by the commissioner to approve a phase two testing plan upon completion of the first phase of testing. The court denied Polymer's application for injunctive relief with respect to two other testing methods required by the commissioner, but placed certain technical limitations on the commissioner as to the precise manner in which those testing methods were to be conducted. In this court, the commissioner claims that the trial court lacked subject matter jurisdiction to entertain Polymer's application for injunctive relief because Polymer had improperly failed to exhaust its administrative remedies. The commissioner claims specifically that Polymer failed to exhaust its administrative remedies because it had not sought a declaratory ruling by the commissioner pursuant to General Statutes § 4-176 (a) on the issue of precontrol stack testing. Polymer maintains that: (1) a declaratory ruling under § 4-176 (a) was not available to it; (2) the commissioner's imposition of precontrol stack testing constituted a modification of the final order and required the commissioner to issue a second cease and desist order pursuant to General Statutes § 4-181a (b); and (3) even if Polymer would otherwise have been required to seek a declaratory ruling by the commissioner on the issue of precontrol stack testing, it need not have done so because it had satisfied several exceptions to the exhaustion doctrine. We agree with the commissioner. I " 'It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter.' " LaCroix v. Board of Education, 199 Conn. 70, 83-84, 505 A.2d 1233 (1986), quoting Connecticut Mobile Home Assn., Inc. v. Jensen's, Inc., 178 Conn. 586, 588, 424 A.2d 285 (1979). Furthermore, "[bjecause the exhaustion doctrine implicates subject matter jurisdiction, we must decide as a threshold matter whether that doctrine requires dismissal of the plaintiffs'claim. . . . [W]henever a court discovers that it has no jurisdiction, it is bound to dismiss the case, without regard to its previous rulings." (Citations omitted; internal quotation marks omitted.) Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556-57, 529 A.2d 666 (1987). Polymer argues that it was not required to seek a declaratory ruling pursuant to § 4-176 (a) because the commissioner lacked statutory authority to direct Poly mer to conduct precontrol stack testing. Specifically, Polymer claims that the authority granted to the commissioner under General Statutes § 22a-174 to adopt regulations to control and prohibit air pollution does not extend to the regulation of emissions before those emissions had been treated by Polymer's pollution control system. We have held, however, that "[wjhere there is in place a mechanism for adequate judicial review, such as that contained in [General Statutes] § 4-183, it is the general rule that an administrative agency may and must determine whether it has jurisdiction in a particular situation. When a particular statute authorizes an administrative agency to act in a particular situation it necessarily confers upon such agency authority to determine whether the situation is such as to authorize the agency to act—that is, to determine the coverage of the statute—and this question need not, and in fact cannot, be initially decided by a court." (Internal quotation marks omitted.) Greater Bridgeport Transit District v. Local Union 1336, 211 Conn. 436, 439, 559 A.2d 1113 (1989); Cannata v. Department of Environmental Protection, 215 Conn. 616, 623, 577 A.2d 1017 (1990). Because Polymer could have appealed to the Superior Court pursuant to § 4-183 from any adverse declaratory ruling by the commissioner concerning his authority to direct Polymer to conduct precontrol stack testing, Polymer was required to request such a declaratory ruling before seeking redress in court. II Polymer next claims that it need not have sought a declaratory ruling on the issue of precontrol stack test ing because the commissioner's letter of July 2,1992, constituted a modification of the final order under § 4-18 la (b) for which the commissioner was required to issue a second cease and desist order. Polymer bases this argument on the assertion that the commissioner could not have construed the final order as authorizing him to require Polymer to conduct precontrol stack testing. We disagree with Polymer. The final order, cast in broad terms consistent with the commissioner's broad statutory mandate in matters of environmental protection, provided the commissioner with wide latitude to monitor and regulate Polymer's manufacturing processes. That order required Polymer, inter alia, to cease its plastics processing operations until it had: (1) installed adequate pollution control equipment; (2) submitted a plan to the commissioner for stack testing of its emissions; (3) ceased the emission of any substance likely to result in imminent and substantial damage to the public health; and (4) submitted a detailed report to the commissioner certifying that its emissions would not cause such damage. Moreover, all documents and reports submitted to the commissioner and all actions undertaken by Polymer relating to its gaseous emissions required approval by the commissioner prior to the resumption of its manufacturing processes. In addition, the precontrol emissions testing required by the commissioner's letter of July 2, 1992, was to have been conducted at the stack of Polymer's plant. Although such tests were to have been performed on the gaseous emissions before they had reached Polymer's pollution control system, the precontrol testing described in the commissioner's July 2,1992 letter was, therefore, a method of stack testing. The final order, moreover, places no limitations or conditions on the commissioner's discretion with respect to the manner in which Polymer was to have conducted such testing. Indeed, the final order required Polymer to submit a written stack testing plan "to conduct stack testing in a manner and for a length of time approved by the commissioner. The plan shall include stack testing of the processing of all substances which [Polymer] intends or desires to process at the site in the future." (Emphasis added.) This sweeping language, which Polymer chose not to contest, granted the commissioner broad authority to require stack testing of a method and duration that, in the commissioner's judgment, would have reduced the risk of any damage to the environment. We agree with the commissioner, therefore, that he reasonably could have interpreted the term "stack testing" in the final order to include the testing of emissions before those emissions had entered Polymer's pollution control system in the stack. Polymer contends that a different conclusion is required because the hearing officer determined that the technical evidence presented at the hearing on the cease and desist order did not warrant the imposition of precontrol stack testing. The hearing was truncated, however, due to Polymer's decision, announced during the hearing and before the commissioner had concluded the presentation of his evidence, to abide by the broad terms of the commissioner's order. Polymer's decision not to contest the terms of the order rendered any further presentation of evidence by the commissioner unnecessary. In such circumstances, and in view of the expansive language of the final order, we are persuaded that the order can reasonably be interpreted to have authorized the imposition of precontrol stack testing by the commissioner. We conclude, therefore, that the commissioner was not obligated to issue a second cease and desist order directing Polymer to conduct precontrol stack testing, and that Polymer was required to have requested a declaratory ruling from the commissioner on the issue of such testing. III Polymer finally contends that it should be excused for failing to exhaust its administrative remedies because it has satisfied several exceptions to the exhaustion rule. "There are some exceptions to the exhaustion doctrine, 'although we have recognized such exceptions only infrequently and only for narrowly defined purposes.' " Pet v. Department of Health Services, 207 Conn. 346, 353, 542 A.2d 672 (1988), quoting LaCroix v. Board of Education, supra, 79. We have recognized that a party aggrieved by a decision of an administrative agency may be excused from exhaustion of administrative remedies if: recourse to the administrative remedy would be futile or inadequate; Greenwich v. Liquor Control Commission, 191 Conn. 528, 541-42, 469 A.2d 382 (1983); the procedures followed by the administrative agency are constitutionally infirm; LaCroix v. Board of Education, supra; or injunctive relief from an agency decision is necessary to prevent immediate and irreparable harm. Pet v. Department of Health Services, supra, 370. We do not agree that Polymer's failure to satisfy the exhaustion requirement falls into any of these recognized exceptions to that rule. Polymer first claims that it would have been futile for it to have sought a declaratory ruling by the commissioner on the issue of precontrol stack testing. See Greenwich v. Liquor Control Commission, supra. Polymer argues that the commissioner had already directed it to conduct precontrol testing and that there was no reason for Polymer to have believed that the commissioner would have reversed or modified his decision. We have held, however, that a mere conclusory assertion that an agency will not reconsider its decision does not excuse compliance with the exhaustion requirement. Housing Authority v. Papandrea, 222 Conn. 414, 430-32, 610 A.2d 637 (1992); Lacroix v. Board of Education, supra, 84-85. Moreover, the record reflects the commissioner's willingness to consider proposals by Polymer to modify or eliminate certain testing requirements originally imposed by the commissioner. Polymer's argument that it need not have sought a declaratory ruling because it would have been futile to have done so is, therefore, without merit. Polymer also contends that its claim of a constitutional violation by the commissioner exempted it from the exhaustion requirement. See Lacroix v. Board of Education, supra. However, "[s]imply bringing a constitutional challenge to an agency's actions will not necessarily excuse a failure to follow an available statutory appeal process." Id., 79. Moreover, "[d]irect adjudication even of constitutional claims is not warranted when the relief sought by a litigant might conceivably have been obtained through an alternative [statutory] procedure . . . which [the litigant] has chosen to ignore. . . ." (Internal quotation marks omitted.) Pet v. Department of Health Services, supra, 354. "[W]e continue to limit any judicial bypass of even colorable constitutional claims to instances of demonstrable futility in pursuing an available administrative remedy." Id., 356. Polymer alleges, without more, that the commissioner, "acting under color of state law, has deprived Polymer of its rights, privileges, and immunities secured by the Constitution and the laws of the State of Connecticut, including Polymer's rights to due process and equal protection as afforded by the Constitution of the State of Connecticut." Although Polymer's complaint fails to explain more precisely the nature of the alleged constitutional violation, Polymer claims on appeal that the commissioner has violated its "right to pursue a lawful business." We are not persuaded that Polymer's conclusory assertion of such a constitutional claim is sufficiently clear and specific to exempt it from the exhaustion requirement in this case. Moreover, because the commissioner would have been required to seek to enforce the terms of the final order in the Superior Court pursuant to General Statutes § 22a-180 (a), Polymer could have obtained relief from any undue interference with its business operations by seeking a stay of the enforcement of the precontrol stack testing requirement imposed by the commissioner. Because, therefore, Polymer would have had the opportunity to vindicate its rights "through an alternative statutory procedure . . . which [Polymer] has chosen to ignore"; Pet v. Department of Health Services, supra, 354; Polymer's allegation of a constitutional violation did not exempt it from the exhaustion requirement. Polymer also asserts that it would have suffered irreparable harm if required to seek a declaratory ruling from the commissioner and that therefore it was entitled to an exception from the exhaustion rule. See id., 370; Harwinton Drilling & Engineering Co. v. Public Utilities Control Authority, 188 Conn. 90, 98, 448 A.2d 210 (1982). Specifically, Polymer argues that the declaratory ruling process might have taken as long as 180 days to complete, and that imposition of the precontrol stack testing requirement during that period would have resulted in plant shutdowns, loss of business opportunities and goodwill, and excessive expense due to the cost of the necessary pollution control equipment and testing. As we have discussed, however, Polymer could have requested a stay of the precontrol stack testing requirement when the commissioner sought to enforce the terms of his letter of July 2,1992. Because Polymer had an adequate remedy at law, it would not have been entitled to injunctive relief; see Pet v. Department of Health Services, supra, 371; and was required, therefore, to have requested a declaratory ruling from the commissioner. We conclude that Polymer failed to exhaust its administrative remedies and that its failure to do so was not excused by any exception to the exhaustion rule. The trial court, therefore, lacked subject matter jurisdiction to entertain Polymer's application for injunctive relief. The judgment is reversed and the case is remanded to the trial court with direction to render judgment dismissing the complaint. In this opinion the other justices concurred. Leslie M. Klein is the sole shareholder and chairman of the board of Polymer Resources, Ltd., a Connecticut corporation. The chief justice granted the commissioner's petition to appeal the order of the trial court to this court pursuant to General Statutes § 52-265a, which provides: "(a) Notwithstanding the provisions of sections 52-264 and 52-265, any party to an action who is aggrieved by an order or decision of the supe rior court in an action which involves a matter of substantial public interest and in which delay may work a substantial injustice, may appeal under this section from the order or decision to the supreme court within two weeks from the date of the issuance of the order or decision. The appeal shall state the question of law on which it is based. "(b) The chief justice shall, within one week of receipt of the appeal, rule whether the issue involves a substantial public interest and whether delay may work a substantial injustice. "(c) Upon certification by the chief justice that a substantial public interest is involved and that delay may work a substantial injustice, the trial judge shall immediately transmit a certificate of his decision, together with a proper finding of fact, to the chief justice, who shall thereupon call a special session of the supreme court for the purpose of an immediate hearing upon the appeal. "(d) The chief justice may make orders to expedite such appeals, including orders specifying the manner in which the record on appeal may be prepared." "The 'order or decision' to which § 52-265a (a) refers need not be a final judgment. . . . Accordingly, this appeal is not jurisdictionally defective even though the [defendant is] appealing a temporary injunction, which, as an interlocutory order, would otherwise not be immediately appealable." (Citation omitted.) Moskier v. Goodviow, 217 Conn. 303, 305 n. 3, 586 A.2d 557 (1991). "[General Statutes] Sec. 22a-7. cease and desist orders, service, hearings, injunctions, (a) The commissioner, whenever he finds after investigation that any person is causing, engaging in or maintaining, or is about to cause, engage in or maintain, any condition or activity which, in his judgment, will result in or is likely to result in imminent and sub stantial damage to the environment, or to public health within the jurisdiction of the commissioner under the provisions of chapters 440, 442, 445, 446a, 446c, 446d and 446k, or whenever he finds after investigation that there is a violation of the terms and conditions of a permit issued by him that is in his judgment substantial and continuous and it appears prejudicial to the interests of the people of the state to delay action until an opportunity for a hearing can be provided, or whenever he finds after investigation that any person is conducting, has conducted, or is about to conduct an activity which will result in or is likely to result in imminent and substantial damage to the environment, or to public health within the jurisdiction of the commissioner under the provisions of chapters 440, 442, 445, 446a, 446c, 446d and 446k for which a license, as defined in section 4-166, is required under the provisions of chapter 440, 442, 445, 446a, 446c, 446d or 446k without obtaining such license, may, without prior hearing, issue a cease and desist order in writing to such person to discontinue, abate or alleviate such condition or activity. "(b) The commissioner shall serve any cease and desist order issued pursuant to this section in accordance with the provisions of section 52-57. The commissioner may also cause a copy of the order to be posted upon property which is the subject of the order, and no action for trespass shall lie for such posting. A cease and desist order shall be binding upon all persons against whom it is issued, their agents and any independent contractor engaged by such persons. "(c) Upon receipt of such order such person shall immediately comply with such order. The commissioner shall, within ten days of the date of receipt of such order by all persons served with such order, hold a hearing to provide any such person an opportunity to be heard and show that such condition does not exist or such violation has not occurred or a license was not required or all required licenses were obtained. All briefs or legal memore nda to be presented in connection with such hearing shall be filed not later than ten days after such hearing. Such order shall remain in effect until fifteen days after the hearing within which time a new decision based on the hearing shall be made. "(d) The attorney general, upon the request of the commissioner, may institute an action in the superior court for the judicial district of Hartford-New Britain at Hartford to enjoin any person from violating a cease and desist order issued pursuant to this section and to compel compliance with such order." The order identifies these substances as phenol, styrene, formaldehyde, acrolein, dibutylamine, triphenylphosphate, phenylether, 2,4,6 tribromophenal, and acrylonitrile. Section 22a-174-l (a) (6) of the Regulations of Connecticut State Agencies provides: " 'Ambient air' means that portion of the atmosphere external to buildings, to which the general public has access." The final order incorporated, inter alia, the following provisions of the cease and desist order: "B. . . . (3) [Polymer] shall not resume the processing of plastic pellets or any other process which results in the emission of the substances identified in paragraph A (3), except for stack testing . . . until and unless [Polymer] does all of the following: (a) Installs pollution control equipment which adequately controls emissions from the processes conducted at the site; (b) (i) Submits a plan in writing to the Commissioner, which is approved by the Commissioner, to conduct stack testing in a manner and for a length of time approved by the Commissioner. The plans shall include stack testing of the processing of all substances which [Polymer] intends or desires to process at the site in the future. [Polymer] may not process any other substances in the future without prior approved stack testing in accordance with this Order. The plan shall include provisions for the observation and review of any and all aspects of the stack testing by representatives of the Commissioner to the extent the Commissioner deems appropriate, (ii) Submits a report to the Commissioner, which is approved in writing by the Commissioner certifying that air emissions from the site will not result in imminent and substantial damage to the public health. The report shall include a detailed description of the basis for its conclusions. (4) [Polymer] shall not be in full compliance with this Order until all actions required by this Order are completed, and [Polymer] otherwise completely and permanently ceases the emission of all substances which will result in, or will likely result in imminent and substantial damage to public health, including all emissions of all substances identified in paragraph A (3) above. (5) If the Commissioner notifies [Polymer] that any document, report or other action is deficient, and does not approve it with conditions or modifications, it is deemed disapproved, and [Polymer] shall correct the deficien cies and resubmit it within the time specified by the Commissioner or, if no time is specified by the Commissioner, within thirty days of the Commissioner's notice of deficiencies. In approving any document, report or other action under this Order, the Commissioner may approve the document, report or other action as submitted or performed or with such conditions or modifications as the Commissioner deems necessary to carry out the purposes of this Order. Nothing in this paragraph shall excuse noncompliance or delay. . . . (10) Nothing in this Order shall affect the Commissioner's authority to institute any proceeding to prevent or abate violations of law, including other violations relating to the emissions at issue in this Order, prevent or abate pollution, recover costs and natural resource damages, and to impose penalties for violations of law which are willful or criminally negligent or for which penalties have not been specifically provided in this Order, including but not limited to violations of any permit issued by the Commissioner. If at any time the Commissioner determines that the actions taken by [Polymer] pursuant to his Order have not fully alleviated the emission of substances which result in or are likely to result in imminent and substantial damage to the public health, the Commissioner may institute any proceeding to require [Polymer] to undertake further investigation or further action to prevent or abate such imminent and substantial damage. (11) Nothing in this Order shall relieve [Polymer] of other obligations under applicable federal, state and local law. (12) No provision of this Order and no action or inaction by the Commissioner shall be construed to constitute an assurance by the Commissioner that the actions taken by [Polymer] pursuant to this Order will result in compliance or prevent or abate pollution. . . . (15) Failure to comply with this order may subject [Polymer] to an injunction under Conn. Gen. Stat. Sec. § 22a-7." "Precontrol stack testing" is the testing of emissions resulting from the manufacturing process before those emissions have entered the pollution control system. The pollution control system relevant to this appeal is that system located in the stack at Polymer's plant. The stack testing plan approved by the commissioner permitted Polymer to conduct its manufacturing operations for twelve hours each day. Prior to April 9,1992, Polymer had conducted such operations twenty-four hours a day. The commissioner ordered Polymer to reduce its hours of operation so that DEP personnel could monitor the emission control testing at the plant. Polymer also requested that the commissioner approve certain modifications to the emission control testing procedures required by the May 14, 1992 letter. The commissioner approved some of Polymer's requests and disapproved others. On July 7, 1992, before the commissioner had completed his review of the reports to determine what, if any, modifications to the terms of his July 2,1992 letter would be acceptable, Polymer resumed its manufacturing operations and emissions testing program as authorized by the commissioner prior to July 2. On August 12, 1992, the trial court, Dean, J., granted the commissioner's motion to dismiss Polymer's complaint for failure to serve the commissioner with a copy of the summons. Upon dismissal of the complaint, Polymer immediately filed a second complaint, identical to the first, as well as a second application for a temporary restraining order. The court granted that application for a temporary restraining order on August 12,1992. The commissioner moved to dismiss the second complaint alleging, inter alia, a lack of subject matter jurisdiction because Polymer had failed to exhaust its administrative remedies. The court denied that motion on August 17, 1992. The court found that Polymer had incurred significant economic harm as a result of its reduction in operating hours: the loss of forty-two operating days due to shutdowns required by the commissioner; and the expense of consultants, experts and pollution control and testing equipment. The court found further that "[c]ompliance with the [commissioner's requirements] might force [Polymer] out of business." The court concluded that "[t]he suggestion of the Commissioner that for any loss of business [Polymer] would have relief at law—to apply to the Connecticut Claims Commissioner for permission to sue the State for monetary damages is chimerical, or at least so unlikely as to be almost nonexistent." Polymer has not appealed the trial court's partial denial of its application for injunctive relief to enjoin the commissioner from requiring further stack testing. The trial court's decision on Polymer's application for a temporary injunction also provided, however, that the commissioner may "issue a cease and desist order . . . despite the partial injunction, whenever he reasonably deems there is an imminent and serious risk of injury to the public health because of processing or emissions at the plant." General Statutes § 4-176 (a) provides: "Any person may petition an agency, or an agency may on its own motion initiate a proceeding, for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency." The commissioner also claims that Polymer failed to exhaust its administrative remedies by not contesting the cease and desist order pursuant to General Statutes § 22a-7 (c); see footnote 3; and by failing to appeal the May 1,1992 final order to the Superior Court within forty-five days as authorized by General Statutes § 4-183. Polymer contends that it was not required either to contest the cease and desist order or to appeal the final order because neither order authorized the commissioner to require Polymer to conduct precontrol stack testing. Polymer further argues that it did not receive notice of the commissioner's decision purporting to require precontrol stack testing until July 2,1992, several weeks after the date by which Polymer would have been required to file any appeal of the final order. We do not address these arguments because we conclude that Polymer failed to exhaust the administrative remedy available to it pursuant to General Statutes § 4-176 (a). General Statutes § 4-181a, entitled "Contested Cases. Reconsideration. Modification," provides in part: "(b) On a showing of changed conditions, the agency may reverse or modify the final decision, at any time, at the request of any person or on the agency's own motion. The procedure set forth in this chapter for contested cases shall be applicable to any proceeding in which such reversal or modification of any final decision is to be considered. The party or parties who were the subject of the original final decision, or their successors, if known, and intervenors in the original contested case, shall be notified of the proceeding and shall be given the opportunity to participate in the proceeding. Any decision to reverse or modify a final decision shall make provision for the rights or privileges of any person who has been shown to have relied on such final decision." The commissioner also makes several claims concerning the trial court's decision on Polymer's application for a temporary injunction. We need not address these arguments, however, because we conclude that the trial court lacked subject matter jurisdiction to entertain Polymer's application. "The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency's findings and conclusions. . . . The doctrine . . . furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency . . . in advance of possible judicial review." (Citation omitted; internal quotation marks omitted.) Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 557, 529 A.2d 666 (1987). Moreover, resolution of the issues at the administrative level may render judicial review unnecessary. See Housing Authority v. Papandrea, 222 Conn. 414, 420-21, 610 A.2d 637 (1992). General Statutes § 4-183 provides in relevant part: "(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal." A declaratory ruling is a "final decision" under § 4-183. See General Statutes § 4-166 (3). General Statutes § 22a-5 directs the commissioner to "carry out the environmental policies of the state" and vests in the commissioner "all powers necessary and convenient to faithfully discharge this duty." Section 22a-5 also provides that the commissioner shall "(a) promote and coordinate management of water, land and air resources to assure their protection, enhancement and proper allocation and utilization . . . [and] (e) provide for the prevention and abatement of all water, land and air pollution including, but not limited to, that related to particulates, gases, dust, vapors, noise, radiation, odors, nutrients and cooled or heated liquids, gases and solids . . . ." The commissioner is further empowered to promulgate environmental standards and regulations to control and prohibit air pollution. See General Statutes § 22a-6 and 22a-174. The legislature, therefore, has vested in the commissioner broad authority and responsibility in matters of environmental protection. See footnote 9. We also note that, prior to the granting of the application for a temporary restraining order on July 7, 1992, the parties were discussing possible modifications to the precontrol stack testing requirement set forth in the commissioner's letter of July 2, 1992. See footnote 10. As a result of those discussions, and after a review of the reports submitted to him by Polymer, the commissioner notified Polymer by letter dated July 21,1992, that "[a]s I was prepared to do when I was served with your court papers, I grant your request to postpone pre-control stack testing as set forth in my letter of July 2, 1992, with . . . [certain] conditions, in order to allow my staff and the Department of Health Services time to review recent reports submitted, and to consider modifications of my precontrol stack testing requirements." In a subsequent letter to Polymer, dated August 21,1992, the commissioner modified and explained his July 21, 1992 letter as follows: "Based on lengthy discussions with . . . your representatives, the Department of Health Services, my staff, and others, I have concluded that a form of pre-control stack testing is still necessary to meet the objectives of [the Ojease and Desist Order . . . and to provide the information necessary to conduct a reliable health risk assessment. However, I believe that certain changes to the July 2,1992 pre-control testing program are acceptable, and will produce the required information. If and when I am no longer restrained or otherwise prevented from doing so, I intend to modify my July 2, 1992 letter. If you have any questions about this matter, my staff is available to discuss them with you." General Statutes § 22a-180 (a) provides: "In addition to those penalties provided by section 22a-175, any person who violates any provision of this chapter, or any regulation, order or permit adopted or issued thereunder may be assessed a civil penalty by the court not to exceed twenty-five thousand dollars for each offense. Each violation shall be a separate and distinct offense and, in the case of a continuing violation, each day of continuance thereof shall be deemed to be a separate and distinct offense. The commissioner of environmental protection may request the attorney general to bring a civil action in the superior court for the judicial district of Hartford-New Britain at Hartford to have such assessment imposed by the court. In addition, the commissioner may request the attorney general to institute a civil action in the superior court for the judicial district of Hartford-New Britain at Hartford for injunctive relief to restrain any further violation of any provision of this chapter, or any regulation, order or permit adopted or issued thereunder. The superior court shall grant such relief upon notice and hearing. If two or more persons are responsible for a violation of any provision of this chapter, or any regulation, order or permit adopted or issued thereunder, such persons shall be jointly and severally liable." General Statutes § 4-176 provides in relevant part: "(e) Within sixty days after receipt of a petition for a declaratory ruling, an agency in writing shall: (1) Issue a ruling declaring the validity of a regulation or the applicability of the provision of the general statutes, the regulation, or the final decision in question to the specified circumstances, (2) order the matter set for specified proceedings, (3) agree to issue a declaratory ruling by a specified date, (4) decide not to issue a declaratory ruling and initiate regulation-making proceedings, under section 4-168, on the subject, or (5) decide not to issue a declaratory ruling, stating the reasons for its action. . . . "(i) If an agency does not issue a declaratory ruling within one hundred eighty days after the filing of a petition therefor, or within such longer period as may be agreed by the parties, the agency shall be deemed to have decided not to issue such ruling." Polymer also could have sought authorization from the claims commissioner to sue the state for damages due to alleged improper conduct by the commissioner of environmental protection acting in his official capacity. See General Statutes § 4-141 et seq. The trial court concluded, however, that recourse to the claims commissioner did not constitute an adequate remedy at law. See footnote 13. We need not reach this issue and therefore decline to do so.

Landau, J. The defendant Mary Harris appeals from the trial court judgment of possession in favor of the plaintiff, the housing authority of the city of Norwalk (housing authority), in a summary process action. The dispositive issue in this appeal, a question of first impression in this state, is whether the plaintiff was required to include a "Kapa notice" in its notice to quit as a condition precedent to commencing the summary process action against the defendant. We con- elude that a Kapa notice was required in the plaintiffs notice to quit in order to confer jurisdiction on the trial court. The following undisputed facts are relevant to our resolution of this appeal. The defendant, a widowed mother of seven, has been living in Roodner Court, federally subsidized public housing, in Norwalk since 1959. In September of 1983, the plaintiff and the defendant entered into a written lease of apartment 3F in building twenty-three of Roodner Court. Also living in the apartment and specifically named on the lease are the defendant's children, Mary Harris, Jr., and Parks Harris, Jr. On March 1,1990, Mary, Jr., was arrested for selling narcotics in an outdoor stairwell between buildings eleven and twelve at Roodner Court, an area that could not be seen from the defendant's apartment. The police connected neither the defendant nor her apartment with the daughter's illegal conduct. As a direct result of the daughter's arrest, the plaintiff caused a notice to quit possession to be served on the defendant on June 1,1990. The notice to quit alleged that the defendant had failed to meet her duty as a tenant under General Statutes § 47a-ll (g) to require others on the premises with her consent to conduct themselves in a manner that does not constitute a serious nuisance. Specifically, the notice to quit alleged that she created a serious nuisance by using or permitting the use of the premises for illegal sale of drugs. The notice did not inform the defendant of her statutorily guaranteed right to rectify the alleged violation within twenty-one days. General Statutes § 47a-15. The defendant remained in possession and the plaintiff instituted a summary process action seeking a judgment of possession against the defendant. The plaintiffs complaint in the summary process action alleged that Mary Harris, Jr., "committed acts upon the premises which constituted use of the premises for the illegal sale of drugs" and that "[her] conduct . . . on the premises constitutes a serious nuisance as defined in [General Statutes] § 47a-15, in violation of [General Statutes] § 47a-ll (g)." There is no reference to any conduct on the part of the defendant. In her fourth special defense, the defendant alleged that the plaintiff failed to notify her as required by § 47a-15. The trial court concluded, inter alia, that the defendant "failed to require Mary, Jr., to conduct herself in a manner that did not constitute a serious nuisance" and that "a Kapa notice . is not required where a tenant has caused a serious nuisance." On the basis of these findings, the trial court rendered judgment for the plaintiff. From this judgment, the defendant has appealed. The defendant argues that the plaintiff was required, pursuant to General Statutes § 47a-15, to notify the defendant in writing prior to the commencement of the summary process action of the particular acts or omissions forming the basis of the términation and the fact that she was entitled to twenty-one days to rectify the misuse. The essence of the defendant's argument is that § 47a-15 requires landlords to notify tenants of these rights except where specifically exempted in that statute, and that her conduct does not fall within one of the enumerated exemptions. Specifically, as related to this case, the defendant argues that General Statutes § 47a-15 exempts the plaintiff from providing such notification only where the landlord elects "to evict based on . . . conduct by the tenant which constitutes a serious nuisance"; (emphasis added); General Statutes § 47a-15; and that because the plaintiff neither alleged nor proved any conduct of the defendant that would constitute a serious nuisance, the plaintiff was required to adhere to the notice requirement of General Statutes § 47a-15. The plaintiff argues that the language of § 47a-15, that exempts the plaintiff from adhering to its notice requirement based on "conduct by the tenant which creates a serious nuisance," necessarily includes the defendant, as well as her daughter, because the purpose of the statute is to hold tenants liable for the activities of all members of the household. We agree with the defendant. Summary process is a statutory remedy that enables a landlord to recover possession from a tenant on the termination of alease. General Statutes § 47a-23. The remedy of summary process is available only when there is a lease and the lease has been terminated. Jefferson Garden Associates v. Greene, 202 Conn. 128, 143, 520 A.2d 173 (1987). " 'Because of the summary nature of this remedy, the statute granting it has been narrowly construed and strictly followed.' " Jo-Mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598, 600-601, 96 A.2d 217 (1953); Marrinan v. Hamer, 5 Conn. App. 101, 103, 497 A.2d 67 (1985). It follows that, before a landlord may pursue its statutory remedy of summary process, the landlord must prove compliance with all of the applicable preconditions set by state and federal law for the termination of a lease. "[Summary process] is preceded by giving the statutorily required notice to quit possession to the tenant. Webb v. Ambler, 125 Conn. 543, 552-53, 7 A.2d 228 (1939)." Housing Authority v. Hird, 13 Conn. App. 150, 155, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988); Marrinan v. Hamer, supra. "As a condition precedent to a summary process action, proper notice to quit is a jurisdictional necessity." Lampasona v. Jacobs, 209 Conn. 724, 729, 553 A.2d 175, cert. denied, 492 U.S. 919, 109 S. Ct. 3244, 106 L. Ed. 2d 590 (1989); Ossen v. Kreutzer, 19 Conn. App. 564, 568, 563 A.2d 741 (1989). "In order to demonstrate its compliance with the notices required for a proper termination, a landlord must show that the notices given to the tenant apprised her of the information a tenant needs to protect herself against premature, discriminatory or arbitrary eviction. . To further this salutary purpose, the notice requirements of § 47a-15 must be construed strictly." (Citations omitted.) Jefferson Garden Associates v. Greene, supra, 143-44. "Section 47a-15 applies to residential apartments generally; Hoban v. Masters, 36 Conn. Sup. 611, 613, 421 A.2d 1318 (1980); and provides that under certain circumstances, in which a tenant fails to comply with his or her rental obligations under § 47a-ll, the landlord is required to deliver to the tenant a written notice 'specifying the acts or omissions constituting the breach' and to give the tenant thirty days to abate the violation or risk the termination of the tenancy. This notice provision has been interpreted to be separate from and preliminary to the maintenance of a summary process action pursuant to § 47a-23. See Marrinan v. Hamer, [supra, 104]; Kapa Associates v. Flores, 35 Conn. Sup. 274, 278, 408 A.2d 22 (1979)." Ossen v. Kreutzer, supra, 569. " 'The language of [§ 47a-15] is clear and unequivocal. It creates a thirty-day reconciliation period, allowing errant tenants to remedy their first miscue within twenty-one days of the termination notice.' Kapa Associates v. Flores, [supra]. The legislative purpose is to discourage summary evictions against first offenders; the machinery of summary process is suspended pending any reoccurrence of substantially the same violation within six months. Id." Marrinan v. Hamer, supra. Additionally, the plain language of § 47a-15 expressly exempts a landlord from compliance with its notice provisions in cases where the breach of the rental agreement is based on a tenant's nonpayment of rent or conduct by the tenant that constitutes a serious nuisance or on conduct that constitutes a violation of § 47a-ll (h). See footnote 7, supra. The question at the heart of this appeal is whether the defendant's conduct is "conduct by a tenant which constitutes a serious nuisance." General Statutes § 47a-15. If her conduct constitutes a serious nuisance, a Kapa notice is not required. If her conduct does not constitute a serious nuisance, a Kapa notice is required. General Statutes § 47a-ll (g) distinguishes between the duty of a tenant to refrain from committing a serious nuisance, as defined by § 47a-15, and the duty of a tenant to require others on the premises with her consent to conduct themselves in a manner that does not constitute a serious nuisance. "For the purpose of [General Statutes § 47a-15], 'serious nuisance' means . . . using the premises for . . . the illegal sale of drugs." General Statutes § 47a-15. As noted earlier, the notice to quit alleged that the defendant violated § 47a-ll (g) by "creating] a serious nuisance by using or permitting the use of the premises for illegal sale of drugs." The trial proceeded on the theory that the summary process action against the defendant was based on the defendant's having violated the statute by permitting the use of the premises for the illegal sale of drugs, not that she personally used the premises for the illegal sale of drugs. Failure to require others to conduct themselves in a manner that does not constitute a serious nuisance, however, is not itself a serious nuisance as defined by § 47a-15. An enumeration of powers in a statute forbids things not enumerated; State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 620, 136 A.2d 792 (1957); and an express mention in a statute of one exemption precluded reading others into the statute. State v. Kish, 186 Conn. 757, 765, 443 A.2d 1274 (1982); Connecticut Light & Power Co. v. Walsh, 134 Conn. 295, 301, 57 A.2d 128 (1948). We conclude that the defendant's conduct did not constitute a serious nuisance as defined by General Statutes § 47a-15 and, thus, the plaintiff was not relieved of its obligation to notify the defendant, in its notice to quit, of the acts or omissions forming the basis of the termination and that she was entitled to twenty-one days in which to rectify the violation. The plaintiff's failure to provide the defendant with a proper notice to quit deprived the trial court of jurisdiction to render judgment. See Lampasona v. Jacobs, supra. A review of the legislative history further supports our conclusion in this case. The Senate hearings on Public Acts 1980, No. 80-288, reveal that the thirty day notice requirement of General Statutes § 47a-15 would be waived if an individual has been convicted of one of a series of offenses and the waiver of notice requirements apply exclusively to individuals who have been convicted of crimes under the terms of the bill. 23 S. Proc., Pt. 9, 1980 Sess., pp. 2722-23. Although the legislature has altered, through amendments, the type of conduct requiring the notice provisions of the statute (serious nuisance replaced illegal conduct), and the burden on a tenant where a landlord seeks to evict on the basis of the tenant's failure to require others on the premises with his consent to conduct themselves in a manner that does not constitute a serious nuisance when the tenant claims to have no knowledge of such conduct (burden shifts to the defendant to prove lack of knowledge), the legislature has taken no action regarding whom the statute was intended to reach. There is clear intent to treat differently those committing a serious nuisance and those who failed to require others to desist from committing a serious nuisance. A further review of the legislative history indicates that the purpose of the statute is not to hold tenants responsible for the activities of other members of the household, as argued by the plaintiff. Rather, the purpose of the statute is to abate the nuisance by providing the tenant with one opportunity to eliminate the cause of the nuisance. This purpose is most effectively served by requiring compliance with § 47a-15. The judgment is reversed and the case is remanded to the trial court with direction to render judgment dismissing the plaintiff's complaint. In this opinion the other judges concurred. Also named in the complaint, but not party to this appeal, are three of the defendant's children, Mary Harris, Jr., Kim Harris and Parks Harris, Jr. We will refer in this opinion to Marry Harris as the defendant. The phrase "Kapa notice" comes from Kapa Associates v. Flores, 35 Conn. Sup. 274, 408 A.2d 22 (1979), which requires a landlord seeking to evict on the basis of specifically enumerated conduct of a tenant to notify the tenant of the particular acts or omissions forming the basis of the termination and the fact that he or she is entitled to twenty-one days to rectify the misuse. See General Statutes § 47a-15. The other issue raised by the defendant was that the trial court relied on improper criteria in reaching its factual conclusion that the defendant did not satisfy her burden of proving that she had no knowledge of her daughter's drug sales. Pursuant to a concededly inflexible drug policy enacted by the housing authority, if evidence of drug sales by a family member of a resident is presented to the housing authority, it institutes eviction proceedings against the entire family. General Statutes § 47a-ll provides in relevant part: "A tenant shall . . . (g) conduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb his neighbors' peaceful enjoyment of the premises or constitute a nuisance, as defined in section 47a-32, or a serious nuisance, as defined in section 47a-15 . . . ." General Statutes § 47a-15 provides in relevant part: "Prior to the commencement of a summary process action, except in the case in which the landlord elects to proceed under sections 47a-23 to 47a-23b, inclusive, to evict based on nonpayment of rent, on conduct by the tenant which constitutes a serious nuisance or on a violation of subsection (h) of section 47a-ll . . . the landlord shall deliver a written notice to the tenant specifying the acts or omissions constituting the breach and that the rental agreement shall terminate upon a date not less than thirty days after receipt of the notice. If such breach can be remedied by repair by the tenant or payment of damages by the tenant to the landlord, and such breach is not so remedied within twenty-one days the rental agreement shall terminate . . . There is no dispute that the conduct of the defendant's daughter constituted a serious nuisance by her as defined by General Statutes § 47a-15, and, therefore, that the plaintiff was not required to provide her with notice prior to commencing a summary process action against her. Premises is defined as "a dwelling unit in the structure of which it is a part and facilities and appurtenances therein and grounds, areas and facilities held out for the use of tenants generally or whose use is promised to the tenant." General Statutes § 47a-l (g).

Callahan, J. On appeal, the defendant, Silas Harris, raises the issue of the sufficiency of the evidence to convict him. He also raises two other issues arising from the trial court's rulings during the course of his criminal trial. The defendant was charged in a substitute information with two counts of assault in the first degree in violation of General Statutes (Rev. to 1989) § 53a-59 (a) (1) and (3), and one count each of assault in the second degree in violation of General Statutes § 53a-60 (a) (5), rioting at a correctional institution in violation of General Statutes § 53a-179b, and possession of a weapon or dangerous instrument in a correctional institution in violation of General Statutes § 53a-174a. He was found guilty by a jury of assault in the second degree, rioting at a correctional institution, and possession of a weapon or dangerous instrument in a correctional institution. He was also convicted of being a persistent serious felony offender in violation of General Statutes § 53a-40 (b). He was sentenced as a persistent serious felony offender to a term of imprisonment of ten years on the assault count and twenty-five years on the rioting count to run consecutively, and to a term of twenty-five years on the possession of a weapon count to run concurrently, for a total effective sentence of thirty-five years imprisonment. Thereafter, he appealed from the judgment of conviction to this court pursuant to General Statutes § 51-199 (b) (3). We affirm the judgment of the trial court. The transcript of the defendant's trial reveals the following. On April 19,1990, at approximately 8:30 p.m., a fight broke out in the east mess hall of the Connecticut Correctional Institution at Somers, involving seventy-five to one hundred inmates who had gathered to share a meal in honor of the Islamic religious feast, Ramadan. Thirty-five correction officers responded in an attempt to restore order. During the incident, the defendant injured correction officer Craig Jacobsen with a sharp instrument. Correction officer Barry Grant, who had checked inmates entering the hall against the list of those authorized to attend, testified that he had seen the defendant in the mess hall on the night in question. Correction officer David Serkosky testified that, upon entering the mess hall in response to Grant's call for help, he had noticed the defendant holding a light colored object resembling a toothbrush handle, an object he said inmates often used to fashion weapons. Serkosky, however, failed to mention the toothbrush handle when he gave a written statement a few hours after the incident. He attributed this failure to the fact that when he had made his statement at approximately 1:45 a.m., after returning from having had his wound sutured at the hospital emergency room, he had been distracted and in pain and had wanted to go home. Jacobsen testified that he had been standing back from the crowd of inmates trying to restore order when he had been attacked by the defendant. Jacobsen stated that he saw a white object come from behind him along the right side of his neck and he had realized he had been cut. He suffered a six inch laceration. After he had been cut, he turned his head and saw the defendant, approximately three feet away, running away from him towards the crowd of inmates, holding what appeared to be a white toothbrush with a razor blade embedded in the handle. Jacobsen stated that he had seen about one half of the defendant's face as he had run off. According to Jacobsen, the entire incident took about six seconds. Jacobsen had worked at the prison for only about seven months at the time of the incident. Prior to his employment at the prison, he had worked elsewhere as a security guard for eighteen months. Jacobsen testified that at the time the defendant cut him, the defendant had been wearing a tan shirt and pants and that he had known the defendant from working in D cell block where the defendant was housed. Jacobsen had, in fact, had a brief encounter with the defendant earlier that same day. Jacobsen also testified that after returning from the emergency room, he had told Detective Thomas Davoren that his assailant was "Harris" in D-90. Davoren, the officer in charge of the investigation, also testified that Jacobsen had identified the cell as D-90, even though Jacobsen's written statement merely stated that his assailant was "Harris" in D block. Jacobsen also identified his assailant as the taller and older Harris brother. In fact, the defendant's brother, who also lived in D block, is older than the defendant. Consistent with Jacobsen's description, however, the defendant is four inches taller than his older brother. Jacobsen testified, moreover, that he had always thought that the defendant was the older of the two Harris brothers. Furthermore, Jacobsen picked the defendant's photograph out of an array that also contained a picture of the defendant's brother. Davoren testified that he had decided to apply for a warrant for the defendant's arrest solely on the basis of Jacobsen's identification of the defendant. At approximately 12:30 a.m. on April 20, an order was issued by Deputy Warden Christopher Dion to transfer the defendant from D block to F block. Prior to the order, Dion had not told anyone about the pending transfer. The defendant's cell was searched and no weapons of any type were found. I The defendant first claims that there was insufficient evidence to support his conviction because the record does not contain proof beyond a reasonable doubt of his identity as Jacobsen's assailant. We disagree. The standard of review of an insufficiency claim is twofold. " 'We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt.' " State v. Milardo, 224 Conn. 397, 402-403, 618 A.2d 1347 (1993); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990). The jury must find every element of the crime proven beyond a reasonable doubt in order to find the defendant guilty. The basic and inferred facts underlying those conclusions, however, need not be proved beyond a reasonable doubt. State v. Crafts, 226 Conn. 237, 243-44, 627 A.2d 877 (1993); State v. Milardo, supra, 403; State v. Castonguay, 218 Conn. 486, 507, 590 A.2d 901 (1991). " 'If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.' " State v. Milardo, supra; State v. Pinnock, 220 Conn. 765, 771, 601 A.2d 521 (1992); State v. Grant, 219 Conn. 596, 604-605, 594 A.2d 459 (1991). On the basis of the evidence and the inferences reasonably drawn therefrom, the jury could have concluded beyond a reasonable doubt that the defendant was Jacobsen's assailant. Although he only saw one half of the defendant's face for a few seconds, Jacobsen knew the defendant and he was able to identify him by name and cell number. Further, notwithstanding that Jacob-sen's written statement indicated only the defendant's cell block, Davoren testified that Jacobsen had identified the defendant's cell number, as well as his cell block, when he had given his statement. Moreover, although Jacobsen mistakenly indicated that the person who had assaulted him was the older of the two Harris brothers, this misconception does not change the fact that Jacobsen recognized which of the Harris brothers was his assailant. He also correctly identified the defendant as the taller of the brothers and picked the defendant's photograph from an array that included a picture of the defendant's brother. Jacobsen's identification was also corroborated by Serkosky's testimony that he had seen the defendant with the same type of weapon in his hand that Jacobsen had observed. Any inconsistencies in Jacobsen's testimony and his credibility were matters properly left to the jury's determination. State v. Somerville, 214 Conn. 378, 391-92, 572 A.2d 944 (1990). The defendant contends, however, that the state's evidence did not preclude every reasonable hypothesis consistent with innocence because the evidence permitted the conclusion that the defendant's brother, not the defendant, was Jacobsen's assailant. The defendant argues that because both Harris brothers resided in D block at the time of the incident and both were in the mess hall when Jacobsen was assaulted, it is a reasonable hypothesis that the defendant was misidentified. Moreover, Jacobsen identified his assailant as the older Harris brother and conceded that there was a family resemblance between the two brothers. We are unpersuaded. " 'The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .' " State v. Stanley, 223 Conn. 674, 681, 613 A.2d 788 (1992); State v. Grant, supra, 604. " '[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. . . .' " State v. Grant, supra. " 'That the jury might have drawn other possible inferences from these facts is not sufficient to undermine its verdict, since proof of guilt must be established beyond a reasonable doubt, not beyond a possible doubt. . . " Id. The jury was entitled to credit Jacobsen's direct testimony that the defendant was his assailant. Moreover, Jacobsen's statement that the person who had assaulted him was "Harris" in D-90, his subsequent photographic identification, and Serkosky's testimony that he had seen the defendant with a weapon in his hand during the incident, as had Jacobsen, allowed the jury reasonably to infer that it was the defendant who had assaulted Jacobsen. We conclude that there was sufficient evidence of identification for the jury to have found proven beyond a reasonable doubt that the defendant was Jacobsen's assailant. II The defendant next claims that the trial court improperly denied him access to Jacobsen's personnel file. Without access to the file, the defendant asserts that he was denied his constitutional right to impeachment information under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and his constitutional right to confront witnesses against him as guaranteed by the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. Additional facts are necessary to resolve this issue. Prior to trial, the defendant subpoenaed Jacobsen's personnel file from the department of correction. Jacob-sen objected to the disclosure of the contents of his personnel file and the attorney for the department of correction indicated that the file should not be released pursuant to General Statutes § l-20a and attempted to quash the subpoena. Jacobsen maintained that even if the court believed the subpoena was appropriate, it should conduct an in camera inspection of his file before ordering any disclosure. The court ultimately decided to review Jacobsen's personnel file in camera. There after, the defendant told the court that he was seeking information related to the incident, job applications, employment reviews, training information, prior bad acts, and anything that might be "an impeachable criminal offense." He requested the court to examine the file for any possible basis for impeachment, including credibility, bias and Jacobsen's observation abilities. After an in camera review, the trial court released to counsel what it determined to be the relevant portions of Jacobsen's personnel file, specifically those portions including references to the incident of April 19, 1990, and Jacobsen's injuries. The court sealed the remainder of the file. In doing so, the court stated that the file contained no other information relevant to the case useful for impeachment or for any other purpose. The defendant objected to the limited disclosure, claiming that any evidence of reprimands for inappropriate behavior, lack of previous experience in the correction field, discharge from previous employment and training performance would all be relevant to challenge Jacobsen's observation abilities. The court explained to the defendant that it recognized that if information in his file could be used to discredit his testimony, such information must be disclosed despite statutory constraints on disclosure of information contained in personnel files. Despite this understanding, the trial court denied the defendant's motion for additional information from the file. The court further indicated that although there were employee evaluations and a job application in the file, there were no details concerning training or grades. The defendant excepted, arguing that his constitutional rights to confront and to cross-examine Jacob-sen fully had been impaired. We are not persuaded that any nondisclosure resulted in a violation of the defendant's constitutional rights. A The defendant was not denied his constitutional right to impeachment information under Brady v. Maryland, supra. A due process violation occurs under Brady only if the prosecution withholds material evidence favorable to a defendant. Id., 87; State v. Bember, 183 Conn. 394, 404, 439 A.2d 387 (1981). We have held, however, that if the trial court discovers material exculpatory evidence in the course of an in camera inspection, it has a duty to disclose it to the defense and the defendant has a due process right to its disclosure. State v. Storlazzi, 191 Conn. 453, 461, 464 A.2d 829 (1983). The defendant was not entitled, however, to an unlimited inspection of Jacobsen's personnel file in the hope of discovering material evidence. Access to confidential records should " 'be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it' . . . and to weigh that value against the interest in confidentiality of the records." (Citation omitted.) Id., 459, quoting State v. Piskorski, 177 Conn. 677, 737, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Internal quotation marks omitted.) State v. John, 210 Conn. 652, 669, 557 A.2d 93, cert. denied, 439 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); United States v. Bagley, 473 U.S. 667, 675, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). Our review of Jacobsen's personnel file, viewed in conjunction with the entire trial transcript, fails to convince us that anything in his file left undisclosed by the trial court would have affected his credibility or would have created a reasonable doubt of the defendant's guilt. The trial court, therefore, did not fail to disclose any evidence bearing on Jacobsen's credibility so material as "to undermine confidence in the outcome" of the trial. United States v. Bagley, supra, 682. Consequently, the court did not abuse its discretion and the defendant's due process rights were not violated. B The defendant also argues that his federal constitutional right to confrontation under the sixth amendment was violated by his denial of access to Jacobsen's personnel file because he was "precluded from inquiring into a critical area of concern [on cross-examination] and thus denied a fair trial." This argument was expressly rejected in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987). In that case, the defendant argued that the trial court had violated his constitutional right to conduct cross-examination under the confrontation clause by denying him access to children and youth service records concerning the key witness against him. Id., 51. The defendant contended that the records might have contained impeachment material that would have enabled him to conduct a more effective cross-examination. Id., 52. In rejecting the defendant's constitutional claim, the United States Supreme Court stated that the confrontation clause guarantees " 'an opportunity for effec tive cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' " (Emphasis in original.) Id., 53, quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985). The confrontation clause is implicated only "when there [is] a specific statutory or court-imposed restriction at trial on the scope of questioning." Pennsylvania v. Ritchie, supra, 54. The right to cross-examine witnesses "does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony. Normally the right to confront one's accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses." Id., 53. The court stated, however, that due process provided a right to any exculpatory information contained in records that enjoyed a qualified privilege under state statute. The court concluded that, in balancing the privacy interest in records with the due process rights of the defendant, an in camera review of the record by the trial court is necessary. Id., 57-58. The court also stated that the trial court has a duty to disclose any information that is material to the defense of the accused. Id., 58. It expressly rejected a claim that defense counsel must be allowed to examine confidential records to determine what would be material. Id., 59. We therefore conclude that the defendant's federal constitutional confrontation and due process rights were adequately protected by the in camera inspection of Jacobsen's personnel file by the trial court. c The defendant failed to object to the nondisclosure of Jacobsen's personnel file on the basis of the Connecticut constitution. He claims on appeal, however, that he is entitled to prevail on his state constitutional claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In accordance with Golding, a defendant may prevail on an unpreserved claim of constitutional error only by meeting four conditions: "(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." Id., 239-40. In the spirit of Golding, this court is free to respond to the defendant's claim "by focusing on whichever condition is most relevant in the particular circumstances." Id., 240. We conclude that the defendant's claim founders on the third Golding requirement. The defendant argues in effect that the trial court's compliance with statutory directives and precedent denied him his constitutional right to confrontation under article first, § 8, of the Connecticut constitution. General Statutes § 1-19 (b) (2) protects from disclosure confidential information in personnel files "that may be potentially relevant to a witness' credibility." State v. Leonard, 31 Conn. App. 178, 198, 623 A.2d 1052 (1993); State v. Januszewski, 182 Conn. 142, 171, 172-73, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981); State v. Moore, 23 Conn. App. 479, 485-86, 581 A.2d 1071 (1990), cert. denied, 217 Conn. 802, 583 A.2d 132 (1991) . Although a criminal defendant has a constitutional right to confront and cross-examine his or her accusers, this right is not absolute. In re Robert H., 199 Conn. 693, 705, 509 A.2d 475 (1986). We have recognized that "the trial court must weigh the defendant's need to examine confidential matter for the purpose of discovering impeaching material against the public policy in favor of the confidentiality of private and personal information." State v. Januszewski, supra, 171-72. "If, for the purposes of cross-examination, a defendant believes that certain privileged records would disclose information especially probative of a witness' ability to comprehend, know or correctly relate the truth, he may, out of the jury's presence, attempt to make a preliminary showing that there is a reasonable ground to believe that the failure to produce the records would likely impair his right to impeach the witness. . . ." (Internal quotation marks omitted.) State v. Howard, 221 Conn. 447, 457-58, 604 A.2d 1294 (1992) . A criminal defendant does not. have "the right to conduct a general 'fishing expedition' " into personnel records. State v. Januszewski, supra, 172. Where the defendant's right to impeach a state's key witness is involved, an in camera inspection by the trial judge of the witness' personnel file is appropriate. Id., 173-74; State v. Leonard, supra, 198-99. After an in camera inspection, the trial court must make a determination of whether the information in the witness' file is probative of his or her capacity to relate the truth or to observe, recollect and narrate relevant occurrences. If the court discovers no probative material useful to the defendant, it should deny the defendant's request for disclosure of confidential information and seal the file to preserve it for possible appellate review. State v. Howard, supra. In Januszewski, we adopted an in camera review procedure for personnel files, but did not do so as a matter of constitutional law. State v. Januszewski, supra, 173-74. "The defendant does not argue that this claim involves the violation of a constitutional right and, therefore, the burden rests upon him to demonstrate the harmfulness of the error." Id., 174. The Appellate Court, however, subsequently adopted the same procedure in reviewing personnel files in a case in which the defendant claimed a violation of his constitutional right to confront witnesses against him under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. State v. Leonard, supra, 196-99. Moreover, this court has determined that an in camera inspection by the trial court of other types of privileged records satisfied the state constitutional confrontation rights of a defendant. See, e.g., State v. Howard, supra (psychiatric and juvenile court records); State v. Hufford, 205 Conn. 386, 533 A.2d 866 (1987) (psychiatric records); In re Robert H., supra (rape crisis center records); State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984) (psychiatric records). Under the circumstances it can hardly be said that a "constitutional violation clearly exists and clearly deprived the defendant of a fair trial." State v. Golding, supra, 240. Pursuant to the third prong of Golding, the defendant cannot prevail on this claim. We are also unpersuaded by the defendant's argument that article first, § 8, of the Connecticut constitution requires that confidential records be given directly to the defendant's counsel rather than to the trial court for in camera review. We are not convinced that the trial court is unable to detect those materials in confidential records that must be disclosed in order to afford a defendant his state due process and confrontation rights. In State v. Storlazzi, supra, 461, we rejected a similar claim that the trial court, because of its unfamiliarity with the theory of defense, could not make an in camera determination of whether material was exculpatory. Moreover, the United States Supreme Court in Pennsylvania v. Ritchie, supra, 60, stated that a defendant's "interest . in ensuring a fair trial can be protected fully by requiring that [confidential] files be submitted only to the trial court for in camera review." In Anew of these precedents, the defendant has not demonstrated that the trial court's failure to turn over Jacobsen's file to defense counsel for counsel's perusal constituted a clear state constitutional violation. The defendant therefore cannot prevail on this unpreserved claim under Golding. Ill The defendant finally claims that the trial court abused its discretion by failing to read back to the jury certain portions of Jacobsen's testimony that counsel and the court earlier had agreed would be read. The additional portions were not read because the jury stated to the court that it did not wish to have them read. Additional facts are necessary to resolve this issue. During deliberations, the jury asked to have read back Jacobsen's testimony concerning what had transpired from the time he had entered the mess hall until his identification of the defendant. The jury indicated that it did not want to rehear Jacobsen's testimony relative to the photographic identification. Prior to reading back the testimony, however, the trial court and counsel agreed that certain portions of Jacobsen's cross-examination, redirect examination and recross-examination, including testimony relative to the identification process, and Jacobsen's presence in the crowd of inmates, would also be read back. When the court reporter began reading portions of Jacobsen's cross-examination as agreed upon by the court and counsel, however, the jury foreperson indicated that the reporter should stop. In response to the court's inquiry if they would like to hear more, the jurors answered in the negative and were excused from the courtroom. The defendant requested that the other agreed upon portions of the testimony be read to the jury. The court denied the request and the defendant excepted. The court had the jury returned to the courtroom and stated: "[J]ust so the record is clear . . . the foreperson indicated they have heard sufficient testimony read back to them. There is additional cross-examination and additional redirect and additional recross. It was indicated by the foreperson that this was not necessary to be read back. Does any juror want any further portion of that testimony read back?" The jurors unanimously indicated that they did not wish to rehear any further testimony. The defendant renewed his exception and requested that the agreed upon portions of Jacobsen's testimony that had not been read to the jury be marked as an exhibit for identification in order to preserve the record for appeal. The court indicated that if the court reporter prepared a transcript indicating the portions of testimony the court and counsel agreed to have read back, it would be marked as an exhibit. Such a transcript, however, was never prepared. The trial court has discretion to grant a jury's request to review testimony. Practice Book § 863; State v. Rivera, 223 Conn. 41, 48, 612 A.2d 749 (1992). " 'What portions of the record, if any, will be submitted to the jury for their consideration is a matter of sound judicial discretion.' " State v. Bennett, 171 Conn. 47, 59, 368 A.2d 184 (1976). The defendant contends that the trial court abused its discretion by failing to require the jury to hear certain portions of the testimony that it specifically stated it did not want to hear. We disagree. State v. Rivera, supra, is dispositive of this issue. See also State v. Nowakowski, 188 Conn. 620, 452 A.2d 938 (1982). In Rivera, the jury asked to rehear two witnesses' testimony and then stated that it had heard enough after hearing the direct examination of one witness. The defendant objected, claiming that the jury should also be required to hear that witness' cross-examination. In determining that the court did not abuse its discretion by not requiring the jury to hear more testimony than it wished to, this court stated: "We conclude, however, that the trial court acted within its discretion when it allowed the jury to rehear only that testimony that the jury indicated that it wished to rehear. We cannot conclude, as the defendant seems to advocate, that the trial court was required as a matter of law to replay more of the witnesses' testimony than the jury believed it needed to rehear in order to reach a verdict." State v. Rivera, supra, 48. The fact that prior to the commencement of the read back there was an agreement between the court and counsel to have read back certain unrequested portions of the record did not limit the trial court's discretion. Because the jury asked that the reading of the testimony stop and declined an invitation to hear anything further, the trial court did not abuse its discretion when it halted the reading of the testimony. Unless the court was convinced that an injustice would result, it was not, despite any agreement, required to force the jury to listen to what it did not want to hear. The prior agree ment postulated that the reading of the unrequested testimony would have some purpose. The jury's request, however, that the reading be stopped and its decline of an invitation to hear anything further clearly indicated that the evidence was now firmly fixed in its collective mind and that no further refreshing of its memory was necessary for it to arrive at a verdict. The agreement was not a contract that compelled the trial court to comply with its terms if compliance would interfere with its proper conduct of the trial. The defendant's final claim is without merit. The judgment is affirmed. In this opinion Peters, C. J., and Santaniello, J., concurred. General Statutes (Rev. to 1989) § 53a-59 provides in pertinent part: "(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . ." General Statutes § 53a-60 provides in pertinent part: "(a) A person is guilty of assault in the second degree when . (5) he is in the custody of the commissioner of correction, confined in any institution or facility of the department of correction, or is a parolee from a correctional institution and with intent to cause physical injury to an employee of the department of correction or an employee or member of the board of parole, he causes physical injury to such employee or member." "[General Statutes] Sec. 53a-179b. rioting at correctional institution: class b felony, (a) A person is guilty of rioting at a correctional institution when he incites, instigates, organizes, connives at, causes, aids, abets, assists or takes part in any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of such institution. "(b) Rioting at a correctional institution is a class B felony." "[General Statutes] Sec. 53a-174a. possession of weapon or dangerous INSTRUMENT IN CORRECTIONAL INSTITUTION: CLASS B FELONY, (a) A person is guilty of possession of a weapon or dangerous instrument in a correctional institution when, being an inmate of such institution, he knowingly makes, conveys from place to place or has in his possession or under his control any firearm, weapon, dangerous instrument, explosive, or any other substance or thing designed to kill, injure or disable. "(b) Possession of a weapon or dangerous instrument in a correctional institution is a class B felony." General Statutes § 51-199 (b) (3) provides in pertinent part: "The following matters shall be taken directly to the supreme court . (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years." (Emphasis added.) Although none of the underlying convictions would have qualified the defendant's case for direct appeal to this court, his conviction of being a persistent serious felony offender subjected his conviction of rioting at a correctional institution and possession of a weapon or dangerous instrument in a correctional institution, both class B felonies, to an enhanced sentence "for the next more serious degree of felony"; General Statutes § 53a-40 (g); namely, a class A felony. Thus, his appeal was properly filed in this court rather than in the Appellate Court. Serkosky, in his statement to the police, however, indicated that he had had to pull Jacobsen out of the crowd. Officer Daniel Palonis testified that he had seen the defendant wearing a white undershirt just prior to the incident. Palonis searched the defendant's cell at 2:30 a.m. on April 20, and found a stained white undershirt. Because tests on the stains were inconclusive, the court permitted no evi dence to be introduced as to what they were. Jacobsen did not notice if the defendant was wearing a white undershirt under his prison uniform at the time of the attack. Correction officer Andrew LeBlanc testified, however, that he walked by the defendant's cell shortly after 4 p.m. on April 19,1990, and noticed boxes stacked up, a sheet obstructing the view, and the walls cluttered with pictures. After the fight in the mess hall, the defendant was locked in his cell. When LeBlanc walked by the defendant's cell at around 11 p.m. that night, the boxes were gone and the walls were barren. The sixth amendment to the United States constitution provides in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right . to be confronted with the witnesses against him . . . ." Article first, § 8, of the Connecticut constitution provides in pertinent part: "In all criminal prosecutions, the accused shall have a right . . . to be confronted by the witnesses against him . . . ." General Statutes § 1-20a provides in pertinent part: "(a) Any contract of employment to which the state or a political subdivision of the state is a party shall be deemed to be a public record for the purposes of section 1-19. "(b) Whenever a public agency receives a request to inspect or copy records contained in any of its employees' personnel or medical files and similar files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency shall immediately notify in writing (1) each employee concerned . "(c) A public agency which has provided notice under subsection (b) of this section shall disclose the records requested unless it receives a written objection from the employee concerned . Upon the filing of an objection as provided in this subsection, the agency shall not disclose the requested records unless ordered to do so by the freedom of information commission . . . ." In fact, Jacobsen had objected only orally to the release of his personnel file. The attorney for the department of correction noted, however, that Jacobsen had several days to object in writing under § l-20a. The eourt never indicated whether it was referring to General Statutes § 1-19 (b) (2) or General Statutes § 1-20a. The file did contain the relevant dates of Jacobsen's training, but the trial court noted that this information had already been elicited at trial. The defendant also requested any records of substance abuse or psychiatric treatment, but the court indicated that there were none. The personnel file at issue enjoys a qualified exemption from disclosure under General Statutes § 1-19 (b) (2) or General Statutes § 12-20a. See State v. Esposito, 192 Conn. 166, 178, 471 A.2d 949 (1984); State v. Leonard, 31 Conn. App. 178, 198, 623 A.2d 1052 (1993). General Statutes § 1-19 provides in pertinent part: "(a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency . . . shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records . "(b) Nothing in sections . . . 1-19 to l-19b, inclusive . . . shall be construed to require disclosure of . . . (2) personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . ." State v. Januszewski, 182 Conn. 142, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981), involved General Statutes § 1-19 (b) (2). The defendant in this case also raised General Statutes § l-20a. The trial court did not indicate, however, which statute it relied on in balancing the defendant's right to discover impeaching material with the confidential nature of the files. The state, however, "filed as a statement of alternative grounds that the entire [Freedom of Information Act] and the State Personnel Act exempt the files from disclosure." Several other states have adopted the in camera procedure established in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987), for other privileged documents. See, e.g., State ex rel. Romley v. Superior Court, 172 Ariz. 232, 836 P.2d 445 (1992); People v. Foggy, 121 Ill. 2d 337, 347-50, 521 N.E.2d 86 (1988); State v. Perry, 552 A.2d 545, 547 (Me. 1989); State v. Cusick, 219 N.J. Super. 452, 455-63, 530 A.2d 806 (1987); Gale v. State, 792 P.2d 570, 583 (Wyo. 1990). Two states have determined that their state constitution requires that counsel be given access to privileged records with appropriate protective orders. See Commonwealth v. Stockhammer, 409 Mass. 867, 570 N.E.2d 992 (1991); Commonwealth v. Lloyd, 523 Pa. 427, 567 A.2d 1357 (1989). The Pennsylvania Supreme Court subsequently limited Lloyd, holding that access to privileged records by counsel is not required where records enjoy an absolute statutory privilege. Commonwealth v. Wilson, 529 Pa. 268, 602 A.2d 1290 (1992). In a letter to defense counsel after the trial, however, the court reporter did indicate the portions of testimony that were reread. The record indicates that the defendant was not at fault for the failure of the record to be adequately preserved. It is true that, as the state points out, the letter of the court reporter is not properly part of the trial record. Although ordinarily we do not take cognizance of extra-record factual matters in order to fill gaps in the record, in this limited instance we will assume that the letter accurately describes the portions of the transcript that had been reread because (1) the defendant was not responsible for the failure to preserve the record, and (2) even if it is assumed that the letter is accurate, the defendant's claim fails. We will assume, therefore, that the defendant's claim has been properly preserved for appeal. Practice Book § 863 provides: "If the jury after retiring for deliberations request a review of certain testimony, they shall be conducted to the courtroom. Whenever the jury's request is reasonable, the judicial authority, after notice to the prosecuting authority and counsel for the defense, shall have the requested parts of the testimony read to the jury."

Norcott, J. After a jury trial, the defendant, Edward F. Johnson, was convicted of operating a motor vehicle while under the influence in violation of General Statutes § 14-227a (a) (l), and evasion of responsibility in operating a motor vehicle in violation of General Statutes § 14-224 (b). The defendant was sentenced to a total effective term of imprisonment of eight months and was fined $1100 plus fees and costs. The defendant appealed from the judgment of conviction to the Appellate Court, which affirmed the conviction. State v. Johnson, 28 Conn. App. 708, 613 A.2d 1334 (1992). We granted certification to appeal limited to two issues: "(1) Was the Appellate Court correct in refusing to review the defendant's claim that the trial court improperly denied his motion to dismiss which claimed that a peace officer does not have probable cause to effectuate a warrantless arrest for a misdemeanor committed outside the presence of that officer? [and] (2) In order to establish a violation of General Statutes § 14-224 (b), must the state prove that the defendant knew that the accident in which he was involved caused 'injury or damage to property?' " State v. Johnson, 224 Conn. 911, 617 A.2d 168 (1992). We affirm the judgment of the Appellate Court. The facts in this case are adequately set forth in the opinion of the Appellate Court. "On April 23, 1990, Catherine Mangels was driving her car on Route 1 in Westbrook when it was struck by a car driven by the defendant. As a result of the collision, the cars became hooked together. Robert Pandora, who had been driving behind Mangels and had witnessed the collision, helped unhook the two cars. Pandora then drove Man-gels' car into the parking lot of a nearby restaurant. "The defendant drove his car to the back of the restaurant lot. Pandora got out of Mangels' car, went to where the defendant had driven, and told him that a bystander had called the police. The defendant responded that he would not wait for the police, and then tried to leave the restaurant lot. The defendant was having trouble getting his car into gear, so Pandora reached into the defendant's car, turned off the ignition and removed the keys. Pandora went into the restaurant with the keys, and the defendant followed him in an unsuccessful attempt to retrieve his keys. When the police arrived, Pandora was walking out of the front door of the restaurant with the defendant behind him. The defendant, upon seeing the police, retreated into the restaurant bathroom and locked himself in a bathroom stall. "Pandora led Trooper Michael Polansky of the state police to the bathroom the defendant had just entered. Polansky identified himself and asked the defendant to come out of the stall. After refusing several times, the defendant finally staggered out. The defendant smelled of alcohol, had bloodshot eyes and was slurring his speech. Pandora identified the defendant as the operator of one of the cars involved in the collision. Polansky asked the defendant if he had been involved in the collision and the defendant replied that he had not. Polansky then asked the defendant to take a number of field sobriety tests. After the defendant refused to take the requested tests, Polansky arrested him without a warrant. "On the way out of the restaurant, the defendant acknowledged that he was the owner of one of the cars that had been involved in the collision. At the police station, Polansky asked the defendant to take a breathalyzer test. He refused. The jury subsequently convicted the defendant of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both, and of evading responsibility." State v. Johnson, supra, 28 Conn. App. 709-11. I Prior to trial, the defendant filed a motion to dismiss the information against him on the ground that there was no probable cause for his arrest because the arresting officer had not been an eyewitness to the misdemeanor with which the defendant was charged. After an evidentiary hearing, the trial court denied the defendant's motion. The defendant later filed a motion for articulation of the trial court's decision. In its articulation, the trial court stated that there had been probable cause to arrest the defendant for driving under the influence and evading responsibility and rejected the defendant's claim that a police officer must be an eyewitness before he can arrest a misdemeanant. On appeal to the Appellate Court, the defendant claimed that the trial court had improperly denied his motion to dismiss. The defendant argued that General Statutes § 54-lf (a), which governs warrantless mis demeanor arrests and permits a warrantless arrest to be made "on the speedy information of others," expands the common law rule that a peace officer cannot arrest a person for a misdemeanor committed outside of his presence. The defendant claimed that this expansion of the common law violated the fourth amendment to the United States constitution and article first, §8 and 9, of the Connecticut constitution, and therefore that the arrest was illegal and required dismissal of the charges against him. The Appellate Court concluded, however, that the defendant had failed to provide any analysis of either the federal or state constitutional claims, and the court, therefore, refused to address them. The defendant argues that the Appellate Court improperly declined review of his constitutional claim on the basis of inadequate briefing. Even assuming, without deciding, that the Appellate Court improperly refused to review this claim, we conclude that the underlying law is so clear that there is no basis for the defendant to prevail on this argument. The defendant argued in the Appellate Court that, by virtue of the illegal arrest, the trial court should have granted his motion to dismiss. Under both federal and state constitutional law, however, an illegal arrest does not operate as a per se jurisdictional barrier to a defendant's subsequent prosecution. See State v. Fleming, 198 Conn. 255, 259-63, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986), and cases cited therein. In Fleming, we held that "[wjhere the fairness of a subsequent prosecution has not been impaired by an illegal arrest, neither the federal nor the Connecticut constitution requires dismissal of the charges or a voiding of the resulting conviction." Id., 263; see also State v. McPhail, 213 Conn. 161, 169-70, 567 A.2d 812 (1989). In the present case, there is no indication that the allegedly illegal arrest tainted the defendant's trial. The defendant does not claim that evidence was seized as a result of the arrest and was later used to obtain a conviction. Indeed, the defendant maintains that his claim involves only his motion to dismiss, and acknowledges that he never moved for the suppression of evidence introduced at trial. On this record, there would be no basis for the defendant to prevail on his argument that the trial court improperly denied his motion to dismiss. The issue of whether the Appellate Court improperly declined to reach this claim is, therefore, academic. II At trial, the trial court instructed the jury regarding the charge of evasion of responsibility in operating a motor vehicle as follows: "The state must prove both, that there was an accident that caused damage to another's property, and that the defendant knew of such accident. It is only necessary that the defendant knew that he was involved in an accident. Knowledge by the defendant that the collision caused damage to property of another is unnecessary." The defendant claimed in the Appellate Court that the trial court had improperly instructed the jury that it was not necessary that the defendant knew that the accident had caused damage to property. The defendant contended that, under the provisions of § 14-224 (b), the state must prove that the defendant had knowledge, not only of the accident, but also of any resulting property damage. The Appellate Court rejected this argument on the ground that the defendant's interpretation of the statute would thwart its purpose. It held that the "only knowledge required is knowledge that there has been an accident." State v. Johnson, supra, 28 Conn. App. 717. Section 14-224 (b) provides: "Each person operating a motor vehicle who is knowingly involved in an accident which causes physical injury . to any other person or injury or damage to property shall at once stop and render such assistance as may be needed . . . .''In this court, the defendant reiterates his argument that § 14-224 (b) unambiguously requires an individual charged with evading responsibility to have knowledge of the accident and of the damage caused by the accident. Therefore, he argues, the Appellate Court improperly construed the statute to require only knowledge of the accident, and not knowledge of the damage as well. We disagree. "It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent. Green v. Ward, 178 Conn. 634, 637-38, 425 A.2d 128 (1979); Sillman v. Sillman, 168 Conn. 144, 147, 358 A.2d 150 (1975); 2A J. Sutherland, Statutory Construction (4th Ed. Sands) § 45.05." All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 194, 567 A.2d 1156 (1989). Where the language of a statute is clear and unambiguous, reference to its history and purpose is unnecessary. Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 538, 582 A.2d 1174 (1990). It is the duty of the court to "interpret statutes as they are written"; Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980); and not " 'by construction read into statutes provisions which are not clearly stated.' " Glastonbury Co. v. Gillies, 209 Conn. 175, 179, 550 A.2d 8 (1988). If the statutory language is unclear, the intent of the legislature may be ascertained by looking to the legislative history and to the purpose that the statute was intended to serve. Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 391, 618 A.2d 1340 (1993). " 'In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.' " King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987). A statute, of course, is not to be interpreted to thwart its purpose. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 489, 400 A.2d 726 (1978). Although arguing that the plain language of the statute is clear and that no construction is therefore required, the defendant has himself pointed to an ambiguity in § 14-224 (b) by raising the issue of whether the statute requires knowledge of both an accident and resulting damage before an individual can be found guilty of evading responsibility. A review of the history and the purpose of this statute, however, supports the construction given to it by the Appellate Court and defeats the defendant's argument. Prior to 1957, § 14-224 (b) read in pertinent part as follows: "Each person operating a motor vehicle who knowingly causes . . . injury or damage to property shall at once stop" and render assistance. General Statutes (1949 Rev.) § 2410. In 1957, our legislature changed that language to provide that "[e]ach person operating a motor vehicle who is knowingly involved in an accident which causes . . . injury or damage to property shall at once stop" and render assistance. General Statutes (1958 Rev.) § 14-224 (a). When the legislature amends the language of a statute, it is presumed that it intended to change the meaning of the statute and to accomplish some purpose. Simko v. Zoning Board of Appeals, 206 Conn. 374, 377, 538 A.2d 202 (1988); Heffernan v. Slapin, 182 Conn. 40, 49, 438 A.2d 1 (1980). Although the legislative history behind this amendment is silent as to the impetus for the change, a commonsense reading of the amendment indicates an intent that a person may be found guilty of evading responsibility if that person is knowingly involved in an accident, regardless of that person's knowledge of injury or damage. We are persuaded, therefore, that this change in statutory language captured the legislative intent that § 14-224 (b) be a mandatory "stop, ascertain and assist" statute, which provides criminal penalties for the failure to do so. We conclude, therefore, that the Appellate Court properly construed liability under § 14-224 (b) so as to require knowledge of the accident alone. This interpretation is consistent not only with its legislative history but also with the purposes of statutes on evading responsibility. The purpose of the statute on evading responsibility is to ensure that when the driver of a motor vehicle is involved in an accident, he or she will promptly stop, render any necessary assistance and identify himself or herself. The essence of the offense of evading responsibility is the failure of the driver to stop and render aid. See 15 D. Blashfield, Automobile Law and Practice (3d Ed.) § 490.92, p. 437. Knowledge of the precise nature of the injury or damage serves no useful function in the fulfillment of the principal purpose of the statute. We agree with the reasoning of the Illinois Supreme Court in People v. Nunn, 77 Ill. 2d 243, 252, 396 N.E.2d 27 (1979), in which it stated, in interpreting its statute on evading responsibility, "[w]e do not . . . hold that it is necessary for the prosecution to show also that the accused knew that injury or death resulted from the collision. To require this additional proof would impose a burden that would be unreasonably difficult to sustain and would tend to defeat the public interest which is served by requiring persons involved in vehicle collisions to stop and provide identification and other personal information and to be available to render assistance if required." Our legislature, by its amendment of § 14-224 (b), has eliminated the requirement of knowledge of injury or property damage, and to construe the statute otherwise would read into the statute a provision that was not intended. See Glastonbury Co. v. Gillies, supra, 179. We conclude, therefore, that, to establish a violation of § 14-224 (b), the state is not required to prove that the defendant knew that the accident in which he was involved caused injury or damage to property. The Appellate Court correctly affirmed the trial court's instructions on the elements of this offense. The judgment is affirmed. In this opinion the other justices concurred. General Statutes § 14-227a (a) provides: "operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight." General Statutes § 14-224 (b) provides: "Each person operating a motor vehicle who is knowingly involved in an accident which causes physical injury, as defined in section 53a-3, to any other person or injury or damage to property shall at once stop and render such assistance as may be needed and shall give his name, address and operator's license number and registration number to the person injured or to the owner of the injured or damaged property, or to any officer or witness to the physical injury to person or injury or damage to property, and if such operator of the motor vehicle causing the physical injury of any person or injury or damage to any property is unable to give his name, address and operator's license number and registration number to the person injured or the owner of the property injured or damaged, or to any witness or officer, for any reason or cause, such operator shall immediately report such physical injury of any person or injury or damage to property to a police officer, a constable, a state police officer or an inspector of motor vehicles or at the nearest police precinct or station, and shall state in such report the location and circumstances of the accident causing the physical injury of any person or the injury or damage to property and his name, address, operator's license number and registration number." General Statutes § 54-1f (a) provides: "For purposes of this section, the respective precinct or jurisdiction of a deputy sheriff or a special deputy sheriff shall be wherever he is required to perform his duties. Peace officers, as defined in subdivision (9) of section 53a-3, in their respective precincts, shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others, provided that no constable elected pursuant to the provisions of section 9-200 shall be considered a peace officer for the purposes of this subsection, unless the town in which such constable holds office provides, by ordinance, that constables shall be considered peace officers for the purposes of this subsection." The defendant's brief in the Appellate Court stated that this statutory enlargement of the common law "may raise constitutional issues." Central to this holding was the premise that " '[d]ue process of law is satisfied when one present in court is convicted of crime after having been fairly apprised of the charges against him and after a fair trial in accordance with constitutional procedural safeguards.' " State v. Fleming, 198 Conn. 255, 263, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 342 (1986), quoting Frisbie v. Collins, 342 U.S. 519, 522, 72 S. Ct. 509, 96 L. Ed. 2d 541 (1952). This conclusion is in accord with the rule in the federal courts; see United States v. Crews, 445 U.S. 463, 474, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980); Gerstein v. Pugh, 420 U.S. 103, 119, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975); and with a host of other state court jurisdictions. See State v. Fleming, supra, 262-63 n.7, for a listing of state courts that have followed the federal rule. We note that the trial court recognized that the defendant would have had difficulty overcoming the holding of State v. Fleming, 198 Conn. 255, 259-63, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986), and that the case would bar dismissal of the information. The trial court, however, made no mention of Fleming when the defendant requested articulation of the basis of the denial of his motion to dismiss. Although we are not bound by the decisions of lower Connecticut courts, we note that, shortly after the amendment to General Statutes § 14;224, every Connecticut Circuit Court decision but one concluded that the controlling element of § 14-224 is knowing involvement in an accident and that, as a result, it is the obligation of the driver to stop and ascertain whether there has been any resulting injury or damage. See State v. Herbst, 2 Conn. Cir. Ct. 236, 238, 197 A.2d 550 (1963); State v. Fournier, 2 Conn. Cir. Ct. 588, 592, 203 A.2d 245 (1964); State v. Mulvey, 3 Conn. Cir. Ct. 297, 304-305, 213 A.2d 228 (1965); compare State v. Richardson, 1 Conn. Cir. Ct. 199, 201-202, 181 A.2d 609 (1962). The Illinois statute on evading responsibility, 111. Rev. Stat., c. 95 1/2, para. 11-401 (a), provides: "The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible and shall then forthwith return to, and in every event shall remain at, the scene of the accident until he has fulfilled the requirements of Section 11-403. . . ."

Dupont, C. J. This appeal concerns a challenge, pursuant to General Statutes § 14-313, to certain park ing restrictions imposed by the defendant police commission of the town of Fairfield (commission) affecting Reef Road near the plaintiffs place of business. The commission appeals from the judgment of the trial court that revoked the commission's order prohibiting parking along the west side of Reef Road between One Rod Highway and Fairfield Beach Road. The commission contends that the trial court improperly (1) proceeded to a determination of the merits when the plaintiff failed to serve and cite in the forty-nine Reef Road residents who petitioned the commission to request the parking restrictions, (2) found that the plaintiff was sufficiently aggrieved by the decision of the commission to allow him to maintain his appeal pursuant to General Statutes § 14-313, and (3) concluded that the parking restrictions adopted by the commission were unreasonable. We affirm the judgment of the trial court. The plaintiff is the owner of the Seagrape Cafe, an eating and drinking establishment located at 1144 Reef Road in Fairfield, which is at the intersection of Reef Road and Fairfield Beach Road. Reef Road runs in a north-south direction for at least one mile from the Post Road on the north, terminating at its intersection with Fairfield Beach Road. Fairfield Beach Road runs in an east-west direction along the town's coastline. Neither Reef Road nor Fairfield Beach Road is exclusively residential. Both are interspersed with commercial and other nonconforming uses. Although the intersection of the two roads is the site of several commercial properties, that portion of Reef Road running north from the plaintiff's business premises to its intersection with One Rod Highway, a distance of approximately 800 feet, is residential and consists of multifamily homes. In this area, Reef Road is thirty-six feet wide. Allowing seven feet for parking on both sides leaves a twenty-two foot wide travel portion of the highway, or eleven foot travel lanes in either direction. Evidence before the trial court showed that these dimensions meet generally accepted standards for commercial and residential areas. The plaintiff's business premises had been the site of a bar-cafe for over fifty years before the plaintiff purchased the property in 1983. Although the Seagrape has an occupancy limit of 180 patrons, it has only sixteen on-site parking spaces and depends on on-street parking for its patrons. Prior commercial establishments at 1144 Reef Road were likewise dependent on on-street parking, which was not restricted in any way. The commission is the traffic authority for the town of Fairfield. At its regular monthly meetings, the commission decides town traffic issues. Prior to making any decision, the commission conducts a traffic survey between 9 a.m. and noon on the Wednesday preceding its monthly meeting. This survey is conducted by at least one member of the commission, along with a liaison from the police department, visiting the site that is the subject of a traffic or parking request. The commissioner who visits the site then makes a recommendation to the full commission regarding the appropriate action. For some time prior to August 9, 1989, the date of the commission's action, the commission had received numerous complaints concerning crowds, noise, and resulting traffic congestion at the southern end of Reef Road, particularly in the late night and early morning hours. The police department had initiated extra patrols during those hours on the weekends but had little success in resolving the complaints. In July, 1989, at a regular meeting of the commission, a resident of Reef Road requested that the commission restrict parking along one side of Reef Road from One Rod Highway to Fairfield Beach Road. The commission suggested that he put together a petition of the area residents regarding the proposal. On July 26, 1989, the resident sent a letter to the commission. Enclosed with this letter was a "Letter of Request," which requested that the commission "explore the possibility of restricting parking to only one side of Reef Road between One Rod Highway and Fairfield Beach Road" and which was signed by forty-nine residents of that area. On August 2, 1989, three commissioners together with a member of the police department visited the lower Reef Road area to conduct a traffic survey. This visit took only a matter of minutes and occurred between 9 a.m. and noon. None of those conducting the traffic survey, including the accompanying police officer, possessed any special traffic expertise. As a result of the survey, these persons recommended that parking be restricted on the west side of Reef Road from One Rod Highway south to Fairfield Beach Road between the hours of 8 p.m. and 6 a.m. This recommendation was conditioned on receipt of "a petition reflecting a consensus of the residents." At the August 9, 1989 regular meeting of the commission, the petition was presented to the commission as well as a survey of the residents of lower Reef Road indicating support for the recommendation. The commission then voted to restrict parking along the west side of Reef Road from One Rod Highway to Fairfield Beach Road from 8 p.m. to 6 a.m. The plaintiff appealed to the Superior Court pursuant to General Statutes § 14-313 because the parking restriction adversely affected his business. The trial court concluded that the action of the commission was beyond the legitimate police powers of the commission and, therefore, was unreasonable because it was "not designed to regulate parking or traffic in response to any overall public need" but "was more directly concerned with the regulating, adverse or otherwise, of the business of the plaintiff." The court revoked the parking restriction and ordered the removal of any signs authorized by the commission to accomplish that purpose. This appeal followed. I The commission first claims that the trial court should not have proceeded to determine the merits of the plaintiffs appeal because the plaintiff failed to serve and cite in the forty-nine Reef Road residents whose petition prompted the challenged commission action. The commission argues that once the forty-nine petitioners were successful before the commission, they acquired a special interest in the proceedings that would be affected by the plaintiff's appeal. Consequently, the commission contends, they were necessary and indispensable parties who needed to be served proper citations to appear as parties. The commission's argument rests on the holding in Fong v. Planning & Zoning Board of Appeals, 212 Conn. 628, 563 A.2d 293 (1989). We conclude, however, that Fong is inapplicable here. "Parties have been termed indispensable when their interest in the controversy is such that a final decree cannot be made without either affecting that interest or leaving the controversy in such condition that its final disposition may be inconsistent with equity and good conscience." Gandio v. Gaudio, 23 Conn. App. 287, 305-306, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990). In such cases, joinder is mandated because due process principles make it "essential that [an indispensable party] be given notice and an opportunity to protect his interests by making him a party to the [action]." Fong v. Planning & Zoning Board of Appeals, supra, 634. Initially, we note that the commission raised the issue of the plaintiffs failure to join the forty-nine petitioners by way of a motion to dismiss. Since § 14-313 requires that only the local traffic authority be named and served in an appeal that challenges the establishment of parking restrictions, the failure to serve and cite the petitioners does not implicate the trial court's subject matter jurisdiction over the plaintiff's appeal. Id., 634-36. Consequently, a motion to dismiss is not the proper method to raise the issue of the nonjoinder of a party. Instead, the exclusive remedy for nonjoinder of indispensable parties is by way of a motion to strike. W. G. Glenney Co. v. Bianco, 27 Conn. App. 199, 202, 604 A.2d 1345 (1992). Although the commission did not properly raise the issue of nonjoinder in the trial court and now seeks to raise a claim on appeal that was not distinctly raised below, "[w]e believe that because of the definition of indispensable party and its relation to the proper disposition of an action, it is necessary for us to review the [commission's] claim even though [it] did not move to strike the plaintiff's complaint." Id., 203. In Fong, the plaintiffs were issued a building permit by the building inspector. Charles W. Pettengill, Jr., the owner of property adjacent to the plaintiffs' property, appealed the granting of the building permit to the planning and zoning board of appeals, which sustained his appeal and revoked the plaintiffs' permit. The plaintiffs then appealed the board's decision to the Superior Court, but did not name Pettengill as a party. Our Supreme Court concluded that an applicant who receives a favorable decision from a planning and zoning board of appeals is a necessary and indispensable party to an appeal by persons aggrieved by the decision "because were the appeal to be sustained the result would be the invalidation and deprivation of rights granted to the applicant by the zoning board." (Empha sis added; internal quotation marks omitted.) Fong v. Planning & Zoning Board of Appeals, supra, 633. The court farther explained that "Pettengill was not merely an abutter, but the person who initiated before the board the very proceeding that has resulted in the present appeal. Unlike other abutters or aggrieved members of the public, whose interests may be regarded as adequately represented by the board itself, he had become a party to the administrative proceeding. If he had not prevailed before the board, he could have appealed from its decision. " (Emphasis added.) Id. Here, by contrast, the parking restrictions approved by the commission granted no rights to the petitioners. Consequently, unlike Fong, the decision of the trial court sustaining the appeal could not invalidate or deprive the petitioners of any rights granted to them by the traffic authority. Additionally, if the persons who signed the petition had not prevailed before the police commission, they could not have appealed the decision. General Statutes § 14-313 allows an appeal only by a "person aggrieved by any order or regulation made by any traffic authority . . . relating to . . . the establishment of parking restrictions . or by the performance of any act pursuant to the provisions of [Chapter 249]." Unlike General Statutes § 8-8 at issue in Fong, § 14-313 does not provide a right of appeal from any "decision" by a traffic authority. The purpose of § 14-313 is to permit a challenge to the exercise of police powers regulating traffic and parking, not to allow a challenge to the failure of the local traffic authority to exercise its statutory powers. The forty-nine petitioners, while obviously interested in the outcome of the plaintiffs appeal to Superior Court, were neither necessary or indispensable parties to the disposition of that appeal. Instead, they are more properly regarded as members of the general public whose interests are adequately represented by the com mission itself. For these reasons, the due process concerns that compelled the conclusion that Pettengill was an indispensable party in the Fong appeal are absent in the present case. Thus, the trial court properly proceeded to consider the merits of the plaintiffs appeal notwithstanding the plaintiffs failure to join the forty-nine petitioners as parties to the appeal. II The commission next argues that the trial court improperly concluded that the plaintiff was aggrieved by the Reef Road parking restrictions. "The jurisdictional requirement of aggrievement serves both practical and functional purposes in assuring that only those parties with genuine and legitimate interests are afforded an opportunity to appeal. . A party [is] aggrieved if it successfully demonstrates a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as the concern of all members of the community as a whole, and successfully establishes that this specific, personal and legal interest has been specially and injuriously affected by the decision." (Citations omitted.) Zoning Board of Appeals v. Planning & Zoning Commission, 27 Conn. App. 297, 300-301, 605 A.2d 885 (1992). "Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980). The commission contends that the plaintiff failed to demonstrate that he has a specific interest that has been injuriously affected by its action. Specifically, the commission argues that because the right of the plaintiff (and his customers) to park along the west side of Reef Road is no different from that of the general public, he cannot satisfy the test for aggrievement. The trial court concluded that the plaintiff was aggrieved. This finding will not be disturbed on appeal unless the subordinate facts do not support that finding. Walls v. Planning & Zoning Commission, 176 Conn. 475, 476, 408 A.2d 252 (1979). Here, the court found that the plaintiff was affected in the conduct of his business by the on-street parking restriction. No reported case has yet defined the specific interest necessary for aggrievement within the terms of General Statutes § 14-313. The commission correctly points out that the plaintiffs aggrievement cannot rest on a claim of any property right in parking along the west side of Reef Road. Parking on public streets is not a property right as such, but a general right of the community. See State v. Muolo, 119 Conn. 323, 326, 176 A. 401 (1935); 10A E. McQuillin, Municipal Corporations (3d Ed. Rev.) § 30.58, p. 375. Although the allowance of parking on a public street is not a property right, it is a right relating to the use of a public street, which, if restricted, can, in some instances, form the basis for aggrievement. If this were not so, the right of appeal given by § 14-313 could never be exercised because no individual member of the public could ever be aggrieved. The trial court, however, did not rest its finding of aggrievement on any property right of the plaintiff in parking on Reef Road. Rather, the court found that the residents' petition that prompted the parking restriction "was aimed at the business of the plaintiff, with an ulterior desire to so restrict or limit it that it might hopefully vanish from the neighborhood," and concluded that the parking regulations "were not designed to regulate parking or traffic in response to any overall public need . . . but more pointedly to restrict or regulate the plaintiff's business." This analysis is relevant as a factor in determining aggrievement. State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 303, 524 A.2d 636 (1987). The plaintiffs property is located in a commercial zone within the town of Fairfield. It had been the site of a bar and restaurant for more than fifty years. As such, the plaintiff had a "predictable fourteenth amendment property right in the commercial use" of his property. Brady v. Town of Colchester, 863 F.2d 205, 212-13 (2d Cir. 1988). Moreover, the plaintiff contended, and the trial court agreed, that this specific personal and legal interest was specially and injuriously affected by the challenged parking restrictions because the parking restrictions are an unreasonable governmental regulation designed to drive him out of business. Cf. Bello v. Walker, 840 F.2d 1124, 1129 (3d Cir.), cert. denied, 488 U.S. 851, 109 S. Ct. 134, 102 L. Ed. 2d 107, 488 U.S. 868, 109 S. Ct. 176, 102 L. Ed. 2d 145 (1988) (substantive due process violation when governmental regulation affecting property is arbitrary, irrational, or tainted by improper motive). Additionally, the area affected by the challenged parking restrictions was close to the plaintiff's business and the trial court found that the parking restrictions had an adverse impact on the plaintiff's business revenues. An economic interest that is injuriously affected may afford a basis for aggrievement; New Haven v. Public Utilities Commission, 165 Conn. 687, 702, 345 A.2d 563 (1974); as long as the economic deprivation is not speculative. Diamond v. Charles, 476 U.S. 54, 106 S. Ct. 1697, 90 L. Ed. 2d 48 (1976); Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 497, 400 A.2d 726 (1978). In light of the proximity of the plaintiff's business to the area affected by the parking restrictions, the economic deprivation suffered by the plaintiff as a result of the restrictions, and the purpose of the commission's action to affect the operation of the plaintiff's business, the trial court properly determined that the plaintiff was sufficiently aggrieved by the commission's decision to pursue his appeal challenging the Reef Road parking restrictions. Ill The commission's last claim is that the trial court improperly concluded that the parking restrictions on the west side of Reef Road were unreasonable. The commission contends that the trial court's method of determining whether the parking restrictions were "reasonable" under General Statutes § 14-313 was flawed. The commission argues that the reasonableness of its parking regulation should be evaluated by its effect and not an analysis of its purpose or the means employed to achieve its purpose. We do not agree. The commission urges us to evaluate the reasonableness of its parking restrictions under the standard enunciated by the United States Supreme Court in Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 64 S. Ct. 281, 88 L. Ed. 333 (1944). "The issue before the Supreme Court of the United States in Hope was the interpretation of § 4 (a) of the federal Natural Gas Act of 1938, 52 Stat. 821, 15 U.S.C. § 717, which provides that gas rates 'shall be just and reasonable.' . . . The court ultimately concluded that '[u]nder the statutory standard of "just and reasonable" it is the result reached not the method employed which is controlling. . . . If the total effect of a rate order cannot be said to be unjust and unreasonable, judicial inquiry is at an end.' Id., 602." (Emphasis added.) Connecticut Light & Power Co. v. Department of Public Utility Control, 216 Conn. 627, 633-34, 583 A.2d 906 (1990). We are unpersuaded that the Hope test provides the proper standard for evaluating the validity of municipal regulations. The power to regulate parking on public streets is a universally recognized police power of the state that may be delegated to its municipal subdivi sions. Edwards v. Hartford, 145 Conn. 141, 145, 139 A.2d 599 (1958); Cassidy v. Waterbury, 130 Conn. 237, 239, 33 A.2d 142 (1943); see also 7A Am. Jur. 2d, Automobiles and Highway Traffic § 271. "It is unquestionably true that any regulation, under the police power, for the use of property must have a reasonable relation to the public health, safety and welfare and must operate in a manner which is not arbitrary, destructive or confiscatory. We examine the ordinance to decide whether in its purpose and operation generally, it satisfies the rule." (Citations omitted; emphasis added.) Calve Bros. Co. v. Norwalk, 143 Conn. 609, 616, 124 A.2d 881 (1956). "If an ordinance is found to be partial and unequal in its operation as between different classes, if it is manifestly unjust, if it discloses bad faith, or if it involves such oppressive and gratuitous inference with the rights of the citizen as can find no justification in the minds of reasonable [people], the court might well say that the legislature never intended to give authority to make such rules, and that they are unreasonable and ultra vires." (Footnote omitted.) 56 Am. Jur. 2d 429, Municipal Corporations, Counties, and Other Political Subdivisions § 388. Judicial review of challenged municipal regulations, therefore, necessarily involves a determination of whether the purposes asserted in support of the regulation are, in fact, served, or whether other, improper purposes have motivated the municipal action and affect its operation. See Builders Service Corporation v. Planning & Zoning Commission, 208 Conn. 267, 545 A.2d 530 (1988). Moreover, the means adopted to produce the result must bear a rational relationship to the stated purpose of the ordinance. Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 22, 523 A.2d 467 (1987); Bush v. Quality Bakers of America, 2 Conn. App. 363, 370, 479 A.2d 820, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984); DeLeon v. Jacob Bros., Inc., 38 Conn. Sup. 331, 446 A.2d 831 (1981), appeal dismissed, 456 U.S. 952, 102 S. Ct. 2026, 72 L. Ed. 2d 447 (1982). For these reasons, the Hope test, which calls on the reviewing court to look at the result alone, is not an appropriate standard by which to review municipal action. The trial court properly concluded that the challenged parking restrictions were not rationally related to a legitimate governmental concern. The court first examined the public safety concerns set forth in the residents' petition; see footnote 2, supra; which represent the only reasons articulated in support of the parking restrictions that were subsequently adopted. The court noted that two of those reasons had nothing to do with the public safety on lower Reef Road. Further, the court noted that the remaining concerns, namely, that traffic and parking on lower Reef Road impairs access by fire department vehicles as well as any other emergency service vehicles, were not supported by the evidence presented. No testimony or other facts of record showed that any of these departments had experienced difficulties in the performances of their duties as a result of traffic congestion in the affected area. In fact, Reef Road meets or exceeds generally accepted standards regarding recommended dimensions of streets. Furthermore, no testimony was offered to show how the parking restrictions, limited to one side of a small portion of Reef Road, could realistically solve the problems identified in the petition. In addition, the court was concerned that the traffic survey, on which the commission at least in part based its action, was conducted during hours that were not the subject of the subsequent parking restrictions. On the basis of all of this evidence, the court concluded that the petition was "not motivated by any considerations of public safety whatsoever." The court further concluded that the "conduct of the commission was more directly concerned with the regulating, adverse or otherwise, of the business of the plaintiff . . . an objective for which the traffic commission was not empowered, unless the regulation corrected an obvious public need or purpose. This has not been shown by any available testimony." In addition to concerns regarding emergency vehicle access to lower Reef Road, the conditions affecting public welfare and safety identified by the commission that it sought to regulate through the parking restrictions also included noise and congestion caused by pedestrian activity in the area of lower Reef Road. While these concerns are legitimate concerns for the exercise of a municipality's police power, the exercise of those powers is arbitrary and unreasonable unless there exists a direct relationship between the conduct sought to be controlled and the regulated activity. Here, the offending conduct, namely, the gathering of people in the street and on the sidewalks of this neighborhood, is not directly related to automobile parking. The power to regulate parking is part of the power to regulate the use and flow of vehicular traffic. Problems related to the activities of pedestrian crowds are not the legitimate concern of a local traffic authority, but fall instead within the purview of the exercise of other police powers. See, e.g., General Statutes § 53a-181 (breach of peace), 53a-181a (creating a public disturbance), 53a-182 (disorderly conduct), 53a-182a (obstructing free passage). Once the town of Fairfield permitted the plaintiff to use his property for commercial purposes, it was clear that traffic, vehicular and pedestrian, on lower Reef Road was going to increase. While commercial development may bring with it certain undesirable consequences, only those problems related to the use of the streets by motor vehicles and the flow of traffic caused by such activity can be rationally related to any regulation approved by a local traffic authority. Because the means adopted here did not bear directly on the concerns that the commission sought to address, the trial court correctly concluded that the purpose of the regulation was to affect adversely the plaintiffs business. The fact that the evidence showed that there has been a decrease in the number of complaints to the police and a freer movements of traffic subsequent to the adoption of the parking restrictions is of no moment. Since the problems being attacked by the commission were not shown to have anything to do with the use of the streets by motor vehicles as opposed to the conduct of individuals who own or operate them, the solution to those problems could not legitimately involve restrictions on the use of the streets by motor vehicles. Consequently, as determined by the trial court, the parking restrictions approved by the commission were, under the circumstances of this case, unreasonable and beyond the valid exercise of police powers conferred on that public body. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 14-313 provides in pertinent part: "Any person aggrieved by any order or regulation made by any traffic authority under the provisions of this chapter, relating to . . . the establishment of parking restrictions or . by the performance of any act pursuant to any provision of this chapter, may take an appeal therefrom to . . . the superior court for the judicial district in which it is located. . A written notice of such appeal, addressed to such traffic authority, shall be deposited with, or forwarded by registered or certified mail to, such traffic authority at least ten days before the return day thereof. Upon such hearing, such court or board shall determine whether the order or regulation appealed from is reasonable, and shall thereupon sustain or revoke such order or regulation." The full text of the "Letter of Request" read as follows: "We, the undersigned residents of Reef Road, between One Rod Highway and Fairfield Beach Road, in the town of Fairfield, Connecticut, do hereby request that the Police Commission explore the possibility of restricting parking to only one side of Reef Road between One Rod Highway and Fairfield Beach Road, either by local or a time basis. "We ask that this be done as we feel that during the night time periods, -a public safety hazard exists for the following reasons: 1. Traffic congestion along with bumper to bumper on street parking during certain hours, impairs access for Fire Department response as well as other emergency services to our homes along this section of Reef Road. 2. Reef Road is the main and most direct route for emergency services such as the Fire Department, to the western end of Fairfield Beach Road. Traffic congestion and bumper to bumper on street parking, with back ups to One Rod Highway, jeopardizes and could result in delays to those residents also. 3. Traffic and present parking in this area would make it impossible for a number of Fire Department vehicles to pass each other and position themselves at the same time in the event of a large, fast spreading marsh fire, which is a common occurrence. 4. During the periods when traffic and parking are excessive, large groups of people can be found walking and gathering the streets, further making access, as well as driving by the public, quite impossible and dangerous. 5. Crowding around parked vehicles during and after the large parties that have plagued the area, further obstructs passage through lower Reef Road, as well as being a source of noise and litter such as broken beer bottles, etc. 6. The high density of both people and structures in this portion of Reef Road, along with the close proximity of homes to each other, make all the more vital unimpaired or undelayed access for Fire Department services. "It should be noted, again, that generally the congestion and access problems occur at night for various reasons. With that in mind, we ask that use of restricted parking based on a time period, much like the parking restrictions implemented on streets surrounding Fairfield High School, be given special consideration. "We feel that restricted parking on one side of the street during these critical periods, would greatly help improve both access and safety hazards that now exist, yet still allow street parking on both sides during the noncritical daytime hours." Minutes of the August 9,1989 commission meeting reflect the following results of the survey: "28-houses in favor, 3 no signature, 6 not for it, 7 not available." Evidence before the trial court showed that the plaintiff was not apprised of the petition or the request made to the commission until after its action which is the subject of this appeal. At the August 9 meeting, the commission also approved a "no parking" order affecting portions of Fairfield Beach Road on both sides of its intersection with Reef Road. These parking restrictions are not the subject of this appeal.

Lavery, J. The defendants appeal from the judgment rendered, after a jury trial, awarding $67,000 to the plaintiff. On appeal, the defendants claim that the trial court improperly charged the jury in that it failed to instruct on (1) the special defense of governmental immunity, (2) the status of the plaintiff while present on school property, and (3) the duty and standard of care the defendants owed to the plaintiff. We affirm the judgment of the trial court. The jury could reasonably have found the following facts. The plaintiff was a student in an adult education program for which classes were held at Central High School in Bridgeport. On January 25, 1985, the plaintiff arrived on school grounds at approximately 7:15 p.m. At that time, it had begun to snow, and the plaintiff noticed patches of ice along the walkway leading to the classroom building. At approximately 9:15 p.m., the plaintiff was leaving the class. Although she noticed that the entire walkway was covered with snow, she continued down the walkway. She subsequently slipped and fell on an accumulation of snow or ice on the walkway. The plaintiff suffered physical injuries from the fall and commenced this action. Prior to the winter months, the board of education had issued a bulletin to all custodians and maintenance personnel in Bridgeport indicating that the walkways were to be inspected and kept clean on a daily basis. The defendants John Domeracki and Eugene Plude were on duty as maintenance workers the night the plaintiff fell. While on duty, it was their responsibility to keep walkways clear of snow and ice. Although there were shovels kept on the school grounds for snow removal and a supply of salt and sand, there was no evidence that the walkway in question had been shoveled, salted or sanded prior to the plaintiffs fall. Plude testified that if precipitation fell on the walkways and began to freeze, maintenance staff would put down salt and sand to keep snow and ice from accumulating at a rapid rate. On the date of the plaintiffs fall, however, neither Domeracki nor Plude could recall putting down any sand or salt. The defendants first claim that because the defense of governmental immunity is a question of fact, it was improper for the trial court to have charged the jury that governmental immunity was not applicable to the case as a matter of law. Connecticut appellate courts have previously approved the practice of deciding the issue of governmental immunity as a matter of law. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). In Gordon, for example, the court concluded that "the general deployment of police officers is a discretionary governmental action as a matter of law." Id., 180. "A municipality's potential liability for its tortious acts is limited by the common law principle of governmental immunity. Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984). Government immunity, however, is not a blanket protection for all official acts. For example, a municipality is immune from liability for the performance of governmental acts as distinguished from ministerial acts. . . . (Citations omitted.) Gordon v. Bridgeport Housing Authority, [supra, 167.]" (Internal quotation marks omitted.) Heigl v. Board of Education, 218 Conn. 1, 4-5, 587 A.2d 423 (1991). " 'Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. . On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action.' (Citations omitted.) Gauvin v. New Haven, 187 Conn. 180, 184, 445 A.2d 1 (1982)." Heigl v. Board of Education, supra, 5. Generally, liability may attach for a negligently performed ministerial act, but not for a negligently performed governmental or discretionary act. Gordon v. Bridgeport Housing Authority, supra, 167-68. The defendant asserts that because Domeracki and Plude had the responsibility of deciding whether there was sufficient accumulation to begin clearing the walkways, they were performing a discretionary function, and that, therefore, the jury should have decided whether the doctrine of governmental immunity applied. A determination as to when to clear a sidewalk, however, is not a discretionary function. Every voluntary physical act necessarily requires some sort of preceding thought process and decision by the actor. In the present case, the board of education's bulletin to all custodians and maintenance personnel was clear — they were to keep the walkways clear of snow and ice. We will not equate the act of clearing snow and ice by maintenance workers, in accordance with a directive by the policymaking board of education, with the policy decisions that are usually afforded protection by the doctrine of governmental immunity. We conclude that it was proper for the trial court to have decided that Domeracki and Plude were involved in a ministerial function as a matter of law. The refusal to charge on the doctrine of governmental immunity, therefore, was proper. The defendants next claim that the trial court improperly failed to charge on the status of the plaintiff in relation to her presence on school property. "Ordinarily, the status of one who sustains injury while upon the property of another is a question of fact. . . . Where, however, the facts essential to the determination of the plaintiff's status are not in dispute, a legal question is presented." (Citations omitted.) Roberts v. Rosenblatt, 146 Conn. 110, 112, 148 A.2d 142 (1959); Morin v. Bell Court Condominium Assn., Inc., 25 Conn. App. 112, 115, 593 A.2d 147, cert. granted on other grounds, 220 Conn. 908, 597 A.2d 334 (1991). A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. 2 Restatement (Second), Torts § 332. "Although an invitation in itself does not establish the status of an invitee, it is essential to it." Corcoran v. Jacovino, 161 Conn. 462, 466, 290 A.2d 225 (1971). In this case, it is undisputed that the plaintiff was invited onto school grounds as a student in an adult education class. As such, she was a public invitee because she was invited to enter or to remain on the land as a member of the public for a purpose for which the land was held open to the public. 2 Restatement (Second), Torts § 332; see Corcoran v. Jacovino, supra, 465. It is clear from the facts presented that her status is that of an invitee. The trial court's charge to the jury, although not specifically labeling the plaintiff an invitee, defined the duty that the defendants' owed to her. Because the court properly set forth that duty, its failure specifically to set forth the plaintiff's status is not harmful error. Finally, the defendants claim that the trial court improperly failed to charge on the duty and standard of care that the defendants owed to the plaintiff. Our review of the record reveals that the court did in fact properly charge on the duty and standard of care. Because the plaintiff was an invitee, the defendants were under a duty to use reasonable care to maintain the premises in a reasonably safe condition. Warren v. Stancliff, 157 Conn. 216, 218, 251 A.2d 74 (1968). After a review of the jury charge, we conclude that the trial court's charge adequately defined the duty that the defendants owed to the plaintiff. The judgment is affirmed. In this opinion the other judges concurred. The plaintiffs original complaint named, as defendants, Frank Kennedy, mechanic in charge of school maintenance for the city of Bridgeport; Walter Chop, director of school facilities for the city of Bridgeport; Eugene Plude, head of maintenance staff at Central High School; John Domeracki, supervisor of night custodial staff at Central High School; A1 McManus, night custodian at Central High School; and the city of Bridgeport. After the testimony at trial had ended, however, the case was withdrawn as to Walter Chop, A1 McManus and the city of Bridgeport by stipulation of the parties. The plaintiffs complaint was in three counts. The first count alleged negligence against Kennedy, Plude, Domeracki and McManus. The second count alleged that the Bridgeport board of education was delegated to pay any judgment rendered against the defendants in the first count pursuant to General Statutes § 10-235. The third count alleged that the city of Bridgeport was delegated by General Statutes § 7-101a and 7-465 to pay any judgment rendered against the defendants in the first count. See Kaye v. Manchester, 20 Conn. App. 439, 443-44, 568 A.2d 459 (1990). The trial court instructed the jury, in part, that "the defendant alleged that the operation and maintenance of this entrance to the school [provides the basis for] governmental immunity. I say to you, ladies and gentlemen, that the government in running the education and other policymaking, the board of education running the school and other — making other policy arrangements for the students does not include the maintenance of removing snow or ice or sanding. It is a ministerial act. It is not an act that is an every day discretion of the board of education. So, therefore, you will and must disregard that in your consideration against the plaintiff as alleged by the defendant." We acknowledge, however, that there is also authority that supports the plaintiffs claim that whether an act is discretionary or ministerial is a question of fact for the jury. "'Whether the act complained of . . . [are] governmental or ministerial is a factual question which depends upon the nature of the act complained of. . . .' Gauvin v. New Haven, 187 Conn. 180, 186, 445 A.2d 1 (1982)." (Citations omitted.) Couture v. Board of Education, 6 Conn. App. 309, 311, 505 A.2d 432 (1986). Also, in Evon v. Andrews, 211 Conn. 501, 507, 559 A.2d 1131 (1989), the court concluded that the trial court's granting of the defendant's motion to strike the plaintiffs negligence count was proper because the defendant's acts were governmental, not ministerial. Similarly, in Shore v. Stonington, 187 Conn. 147, 154, 444 A.2d 1379 (1982), the court concluded that summary judgment for the defendant was proper because the defendant's acts were not ministerial nor did they subject an identifiable victim to imminent harm. See footnote 7, infra. We note that "distinctions between discretionary acts and ministerial acts are often controlling without regard to whether the duty is ascertained to be public or private." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). Even if an act is governmental or discretionary, liability may nevertheless attach: "first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm; see, e.g., Sestito v. Groton, 178 Conn. 520, 528, 423 A.2d 165 (1979); second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; see, e.g., General Statutes § 7-108 creating municipal liability for damage done by mobs; and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence. See, e.g., Stiebitz v. Mahoney, 144 Conn. 443, 448-49,134 A.2d 71 (1957)." Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). The court instructed in part: "Now, ladies and gentlemen, the question for you is . . . [w]ould the ordinarily prudent person in the defendants' position, knowing what they know or should have known, anticipated that harm of the general nature of that suffered by the plaintiff was likely to result.... [A] place must be reasonably protected, against defects or dangers that may be in existence and may be anticipated that injury may result if that defect is not corrected or repaired. " (Emphasis added.)

Heiman, J. The defendants appeal from judgments of conviction, rendered after a jury trial. The defendant Gardenia Ephraim was convicted of six counts of larceny in the first degree in violation of General Statutes § 53a-8, 53a-119 (2) and 53a-122 (a), three counts of conspiracy to commit larceny in the first degree in violation of General Statutes § 53a-48 (a), 53a-119 (2) and 53a-122 (a), one count of larceny in the second degree in violation of General Statutes § 53a-8, 53a-119 (2) and 53a-123 (a) (2), one count of conspiracy to commit larceny in the second degree in violation of General Statutes § 53a-48 (a), 53a-119 (a) (2) and 53a-123 (a) (2), one count of attempt to commit larceny in the third degree in violation of General Statutes § 53a-8, 53a-49 (a) (2), 53a-119 (2), 53a-124 (a) (2), and one count of racketeering in violation of General Statutes § 53-395 (b). Her codefendant, Mary Ephraim, was convicted of three counts of larceny in the first degree in violation of General Statutes § 53a-8, 53a-119 (2), and 53a-122 (a) (2), three counts of conspiracy to commit larceny in the first degree in violation of General Statutes § 53a-48 (a), 53a-119 (2) and 53a-122 (a), one count of larceny in the second degree in violation of General Statutes § 53a-8, 53a-119 (2) and 53a-123 (a) (2), one count of conspiracy to commit larceny in the second degree in violation of General Statutes § 53a-48 (a), 53a-119 (2) and 53a-123 (a) (2), and one count of racketeering in violation of General Statutes § 53-395 (b). The charges against the defendants arose out of their alleged fraudulent acquisition of money and goods from six different victims in exchange for what the defendants termed "the work," which encompassed fortune telling, spiritual advice and combatting evil spirits. The defendants claim that (1) the prosecution of them was "inherently unfair" and was "barred" by the free exercise clauses of the first amendment to the United States constitution and article seven of the Connecticut constitution and (2) the trial court improperly admitted certain statements and lifestyle evidence under the coeonspirator exception to the hearsay rule. We affirm the trial court's judgment. I The defendants first claim that the prosecution of them was "inherently unfair" and was "barred" by the free exercise of religion clauses of the first amendment to the United States constitution and article seven of the Connecticut constitution. They cannot prevail on this claim. In an attempt to understand the nature of the defendants' first challenge to their convictions, it is useful to note what the defendants do not claim. They do not claim that the statutes under which they were prosecuted are facially unconstitutional, that the trial court's jury instructions on the free exercise of religion were erroneous, that the trial court's denial of their postverdict motions for judgment of acquittal was improper, that the evidence against them was insufficient to support their convictions or that the trial court should have declared a mistrial. In addition, the defendants conceded at oral argument "this case . . . does not involve any allegation of prosecutorial misconduct . . . ." Further, they do not claim, as required by General Statutes § 52-263 and Practice Book § 4000, to be "aggrieved by [a] decision of the court or judge upon any question or questions of law arising in the trial . . . ." Instead, the defendants make the ethereal, amorphous and generalized claim that the "prosecution is barred" by the free exercise clauses of the federal and state constitutions. They further assert that "the prosecution of these activities was inherently unfair and is explicitly prohibited by the aforementioned guarantees." Thus, their claim appears to be that the free exercise clause necessarily caused the prosecution to be barred, or alternatively, inherently unfair. The defendants further concede that their claim was not preserved for appellate review, and request review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In State v. Golding, supra, our Supreme Court reformulated the standard of appellate review of unpreserved claims: "[W]e hold that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." Id., 239-40. We conclude that the defendants cannot satisfy either the first or third prongs of Golding, and therefore cannot prevail on their claim. The defendants cannot satisfy the first Golding requirement — that the record is adequate to review the alleged claim of error. As demonstrated above, the defendant has not claimed that the trial court committed any particular error. The record necessarily is inadequate to review this nonclaim. The defendants also cannot satisfy the third Golding requirement — that the alleged constitutional violation clearly exists and clearly deprived them of a fair trial. "[The United States Supreme Court] has long recognized a distinction between the freedom of individual belief, which is absolute, and the freedom of individual conduct, which is not absolute." Bowen v. Roy, 476 U.S. 693, 699, 106 S. Ct. 2147, 90 L. Ed. 2d 735 (1986); see also Cantwell v. Connecticut, 310 U.S. 296, 303-304, 60 S. Ct. 900, 84 L. Ed. 1213 (1940). An individual's religious beliefs do not necessarily excuse noncompliance with otherwise valid laws prohibiting conduct. Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 878-79, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). For instance, in Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1879), the United States Supreme Court upheld a federal statute criminalizing bigamy despite the petitioner's sincere belief that it was his religious duty to practice bigamy, stating: "To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." Id., 167. The Supreme Court of the United States has made clear that their decisions do not "even remotely . . . imply that, under the cloak of religion, persons may, with impunity, commit frauds upon the public. Certainly penal laws are available to punish such conduct." Cantwell v. Connecticut, supra, 306. It is further well settled that the free exercise of religion clause protects only those activities that are undertaken because of a religious belief that the defendant sincerely holds. See Murphy v. Arkansas, 852 F.2d 1039, 1041 (8th Cir. 1988); Martinelli v. Dugger, 817 F.2d 1499, 1503 (11th Cir.), cert. denied, 484 U.S. 1012, 108 S. Ct. 714, 98 L. Ed. 2d 664 (1987); United States v. Daly, 756 F.2d 1076, 1081 (5th Cir.), cert. denied, 474 U.S. 1022,106 S. Ct. 574, 88 L. Ed. 2d 558 (1985); Patrick v. LeFevre, 745 F.2d 153, 159-60 (2d Cir. 1984); Forest Hills Early Learning Center, Inc. v. Lukhard, 728 F.2d 230 (4th Cir. 1984), cert. denied, 488 U.S. 1029, 109 S. Ct. 837, 102 L. Ed. 2d 969 (1989); Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1030 (3d Cir.), cert. denied, 456 U.S. 908, 102 S. Ct. 1756, 72 L. Ed. 2d 165 (1981); Callahan v. Woods, 658 F.2d 679, 683 (9th Cir. 1981); Ron v. Lennane, 445 F. Sup. 98, 100 (D. Conn. 1977); Maguire v. Wilkinson, 405 F. Sup. 637, 640 (D. Conn. 1975). Thus, if the jury could reasonably have concluded that the defendants' purported religious beliefs were not sincere, but were a pretext for committing deception or fraud, the free exercise clause did not prohibit their conviction. Patrick v. LeFevre, supra, 157. It will suffice to say, without detailing the voluminous evidence introduced at trial, that our review of the record discloses ample evidence on which the jury reasonably could have concluded that the defendants did not sincerely believe the representations that they made to the victims regarding fortune telling and other metaphysical matters. For instance, Mary Ephraim admitted that the purpose of fortune telling was to secure as much money as possible from the victims without hurting them, that certain rituals that the defendants performed in order to persuade the victims to give them money were mere trickery and that the defendants intentionally perpetrated rather elaborate hoaxes in order to convince the victims that the defendants possessed supernatural powers. These admissions, coupled with the testimony of the victims and other witnesses, provided an adequate factual predicate for the jury to find that the defendants did not sincerely believe the representations that they made to the victims in this matter. As a result, the defendants have utterly-failed to demonstrate that a constitutional violation clearly exists. Because the defendants have failed to satisfy the first and third prongs of State v. Golding, supra, they cannot prevail on this claim. II The defendants next claim that the trial court improperly admitted certain statements and lifestyle evidence of alleged coconspirators under the coconspirator exception to the hearsay rule without making an adequate preliminary finding, as required by State v. Vessichio, 197 Conn. 644, 500 A.2d 1311, cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986). "Because the claim does not involve the violation of a constitutional right, the burden lies with the defendant to demonstrate the harmfulness of the error." State v. Denby, 198 Conn. 23, 32, 501 A.2d 1206 (1985), cert. denied, 475 U.S. 1097, 106 S. Ct. 1497, 89 L. Ed. 2d 898 (1986); see also State v. Sullivan, 11 Conn. App. 80, 84-85, 525 A.2d 1353 (1987). The defendants, however, have neither made nor analyzed any claim of prejudice. Thus, we need not decide whether the trial court improperly admitted the challenged evidence. Having failed to demonstrate that they were prejudiced by the admission of this evidence, the defendants cannot prevail on their claim. The judgments are affirmed. In this opinion the other judges concurred. The first amendment to the United States constitution provides in pertinent part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . Article seven of the Connecticut constitution provides in pertinent part: "It being the right of all men to worship the Supreme Being, the Great Creator and Preserver of the Universe, and to render that worship in a mode consistent with the dictates of their consciences, no person shall by law be compelled to join or support, nor be classed or associated with, any congregation, church or religious association. No preference shall be given by law to any religious society or denomination in the state. . . ." The free exercise clause of the first amendment has been made applicable to the states by incorporation into the fourteenth amendment. See Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 876-77, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). Although the defendants assert that their rights under both the state and federal constitutions were violated, they do not provide a separate analysis of their state constitutional claim. Both we and the Supreme Court have declined to review a defendant's state constitutional claim, deeming it to have been abandoned, when the defendant has not briefed and analyzed that claim separately. See, e.g., State v. Hernandez, 204 Conn. 377, 394 n.9, 528 A.2d 794 (1987); State v. Hoeplinger, 27 Conn. App. 643, 652 n.2, 609 A.2d 1015 (1992); State v. Redente, 19 Conn. App. 521, 531 n.5, 563 A.2d 1365 (1989). That declination, however, does not mean that we are not able to review such a claim if we choose to do so. State v. Hoeplinger, supra; State v. Geisler, 25 Conn. App. 282, 283-84 n.2, 594 A.2d 985 (1991), aff'd, 222 Conn. 672, 610 A.2d 1225 (1992).

Dupont, C. J. The principal issue to be decided in this mortgage foreclosure action is whether a prejudgment attachment may be obtained, as additional security, to secure recovery of an anticipated deficiency judgment when there is an expectation that the property securing the debt may not be sufficient to satisfy the debt. We conclude that such an attachment may be obtained upon the requisite determination of probable cause. The salient facts are not in dispute. On September 14, 1989, the defendant Bilmor Building Corporation (Bilmor), through its president, the defendant Eamon F. Moran, executed a promissory note in favor of the plaintiff, People's Bank (bank), in the amount of $650,000. Moran personally guaranteed payment of the debt. As further security for the debt, Bilmor contemporaneously mortgaged to the plaintiff its interest in certain real property located in the town of Bloomfield and the mortgage was subsequently recorded on the Bloomfield land records. In December, 1990, Bilmor and Moran defaulted on the note by failing to make timely payments under the terms of the note. The plaintiff instituted the present action on July 17, 1991, seeking inter alia, foreclosure of the mortgage, a deficiency judgment against the defendants, and money damages. In conjunction with this action, the plaintiff, through its attorney, issued a $705,000 ex parte prejudgment attachment against Bilmor's interest in two properties located in the town of Windsor. The complaint alleged that a lis pendens relating to these properties had also been recorded on the land records. The attachment was issued and recorded on July 25,1992, without prior notice or hearing and without any action by a court, pursuant to a clause in the note that expressly waived the defendants' rights to a notice and hearing, as permitted by General Statutes § 52-278f. Bilmor and Moran subsequently, on August 21,1991, moved to dissolve the prejudgment attachment. At the scheduled hearing on the motion, the defendants claimed that the attachment was improper because it was filed without a court hearing in violation of law, that the attachment was based on the assumption that a deficiency judgment would enter in the foreclosure action, that no deficiency had yet been found to exist, and that the sole remedy in an action to foreclose a mortgage is against the real property liened by the mortgage. The motion to dissolve was granted on September 16,1991, from the bench by the court, A. Aron-son, J. A memorandum of decision was later filed on November 22, 1991. After the defendants moved to dissolve the ex parte attachment, the plaintiff, on September 10,1991, filed an application for a prejudgment remedy that was based not on General Statutes § 52-278f, but on § 52-278d. A scheduled hearing on the application was held on October 7,1991, and the application was denied by the same court on October 25, 1991. Pursuant to the plaintiff's motion for articulation, the trial court issued a memorandum of decision as to the denial of the application on January 14, 1992. On December 2,1991, the trial court, Freed, J., rendered a judgment of strict foreclosure against the mortgaged property. Both defendants had previously been defaulted for failure to disclose a defense. The court found the total amount of the debt, including appropriate fees, to be $705,890.03 and the value of the property to be $605,000. The law days passed without redemption and title to the Bloomfield property vested in the plaintiff. After the judgment of strict foreclosure was entered, the plaintiff moved for a deficiency judgment, which was granted on February 10,1992, by the trial court, Salter, J. The trial court, Aronson, J., dissolved the ex parte attachment and denied the application for an attachment because it concluded, as a matter of law, that a mortgagee may not "obtain additional security for a mortgage debt based solely on an expectation that the property securing the debt may be inadequate" and that, until a deficiency judgment is rendered, there can be no probable cause to support a plaintiff's application for a prejudgment remedy or the plaintiff's ex parte real estate attachment. At the hearing on the defendants' motion to dissolve the attachment, there were representations by the attorneys for the parties as to the amount of the debt and the value of the property as of that date. At the hearing on the plaintiff's application for a prejudgment remedy, the plaintiff offered to present testimony of a bank official that the debt exceeded $690,000 and the testimony of a real estate appraiser that the fair market value of the property was $610,000. The plaintiff also relied on the affidavit filed with the § 52-278Í attachment to establish probable cause. The defendants conceded that the plaintiff's figures were accurate. The court, however, allowed no evidence because of its view of the law. The determination of a deficiency, according to the trial court, could be made only following a hearing on a motion for a deficiency judgment, which could only occur after a judgment of foreclosure had been rendered. Therefore, because the existence or amount of any deficiency had not yet been determined as of the dates of the hearings on the motion to dissolve the prejudgment remedy attachment and on the application for a prejudgment remedy, the former was granted, and the latter denied. The memoranda of decision as to both the motion and application are virtually identical as to their rationale. The bank appealed from the dissolution of the attachment and from the denial of its application for a prejudgment remedy and filed a motion to stay the dissolution of the attachment pursuant to General Statutes § 52-278l (c). The trial court granted the plaintiffs motion to stay the dissolution of the prejudgment attachment. The resolution of the appeal from the granting of the defendants' motion to dissolve the attachment and the resolution of the appeal from the denial of the plaintiff's application to obtain an attachment require the same analysis. We, therefore, discuss them together unless otherwise noted. The plaintiff claims that the prejudgment attachment should not have been dissolved because it was a legally allowable remedy in a mortgage foreclosure action that also sought a deficiency judgment and damages. The plaintiff further argues that it should have been allowed to present evidence relating to the merits of whether probable cause existed for the attachment. The plaintiff also claims that the court improperly denied its application for a prejudgment remedy. The defendants assert that the "contingent" nature of a deficiency judgment, coupled with General Stat utes § 49-1,49-14, and 49-28, has the net effect of prohibiting prejudgment attachments to secure recovery of an anticipated deficiency judgment in foreclosure cases. The foundation of the defendants' argument is that a deficiency judgment does not "accrue" unless and until an ascertainable dollar amount of the deficiency is established at the time of foreclosure, and that, until then, the deficiency judgment is merely contingent. The defendants maintain that the deficiency judgment is contingent until the time of the judgment of foreclosure for two reasons. The first is that the foreclosing mortgagee is entitled to a deficiency judgment only if he applies for it "within thirty days after the time limited for redemption has expired." General Statutes § 49-14; Practice Book § 528. The second reason is that the amount of the deficiency is uncertain until the completion of the foreclosure hearing, and, in fact, there may be no deficiency at all. The defendants use this allegedly contingent quality as the springboard for their analysis. The defendants further assert that because the deficiency judgment had not yet "accrued" at the time of the prejudgment attachment, the attachment cannot be predicated on the anticipated deficiency but must, by implication, be grounded on the note evidencing the underlying debt or obligation. In order to resolve the issue of whether a foreclosing mortgagee may, at the beginning of a foreclosure action, take advantage of the statutes relating to prejudgment remedies against property of a mortgagor that is unencumbered by the mortgage, in which action the mortgagee also seeks a deficiency judgment, we must first resolve whether the cause of action for a deficiency judgment existed at the time the suit was instituted. "A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. . . . A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and of that delict constitute the cause of action." (Citations omitted; internal quotations marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 546-47, 590 A.2d 914 (1991); Levine v. Town Plan & Zoning Commission, 25 Conn. App. 199, 207, 594 A.2d 9 (1991). Although a single group of facts may give rise to several kinds of relief, there is still one single cause of action. Vakalis v. Kagan, 18 Conn. App. 363, 367, 557 A.2d 1285 (1989). At the time of the commencement of this foreclosure action, a cause of action for a deficiency judgment existed. This is so because the defendants had already defaulted in payment of the note, and that delict had already caused the harm to the plaintiff, namely, whatever the loss was that was occasioned by the deficiency between the fair market value of the property and the balance, plus interest, due on the note. The same group of facts here gave rise to different kinds of relief, namely, a foreclosure, payment on a note and a deficiency judgment. These different kinds of relief do not alter the fact that there was but one cause of action at the inception of suit; Vakalis v. Kagan, supra, 367-68; and that cause of action included a statutory right to a deficiency judgment pursuant to General Statutes § 49-14. It is well established that a mortgagee has two separate and distinct causes of action against a defaulting mortgagor. A mortgagee may pursue an action at law for the amount due on the promissory note, or it may pursue its remedy in equity and foreclose on the mortgage. Hartford National Bank & Trust Co. v. Kotkin, 185 Conn. 579, 581, 441 A.2d 953 (1981). The mortgagee may also pursue both of these remedies simultaneously in one consolidated foreclosure suit. Id. The only restriction on the mortgagee's election of remedies is contained in General Statutes § 49-1, which provides that "[t]he foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for the payment thereof who are made parties to the foreclosure . . . ." General Statutes § 49-14 furnishes an exception to § 49-1 by providing that, "[a]t any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment." Id. Thus, a mortgagee who elects to pursue his right of foreclosure of a mortgage and his right to obtain payment of a promissory note may also, in the same action, seek a deficiency judgment. When a deficiency judgment is sought, the plaintiff may recover the difference between the amount due on the underlying debt and the amount received upon foreclosure. First Bank v. Simpson, 199 Conn. 368, 371, 507 A.2d 997 (1986). In this case, the plaintiff sought and obtained a judgment of foreclosure. As the amount due on the underlying debt exceeded the value of the property upon strict foreclosure, the plaintiff was entitled, within thirty days of the foreclosure, to seek a deficiency judgment in accordance with § 49-14. Even though the plaintiff was entitled to obtain a deficiency judgment in the foreclosure suit, it would be able to recover the amount of the deficiency judgment only if the defendants had other assets left to satisfy that judgment. The plaintiff, by its prejudgment attachment, attempted to secure a position superior to that of other attaching creditors. The plaintiff seeks to have its deficiency judgment or any judgment lien obtained pursuant to the deficiency judgment relate back to the date of the attachment. The first sentence of General Statutes § 52-279 authorizes the granting of attachments "upon all complaints containing a money demand against the estate of the defendant, both real and personal." The statute then details specific instances when such attachments are not permitted. None of the enumerated exceptions proscribes the use of attachments in foreclosure actions. It is a well established maxim of statutory construction that when a statute enumerates exceptions to a stated general proposition, anything not excepted is conclusively included. State v. Kish, 186 Conn. 757, 443 A.2d 1274 (1982). There is also no exception for foreclosure actions in the general prejudgment remedy statute. General Statutes § 52-278a through 52-278h. General Statutes § 52-278b provides for prejudgment remedies in "any action at law or equity." Thus, neither the attachment statute nor the prejudgment remedy statute specifically prohibits the granting of a prejudgment attachment in a foreclosure action. Similarly, there is nothing in those statutes that specifically prohibits the granting of a prejudgment attachment to secure the payment of a deficiency judgment. If the legislature intended to prevent the use of prejudgment attachments to secure the payment of deficiency judgments in foreclosure cases, then presumably it would have done so. It has not. The note signed by the defendants clearly anticipated that a prejudgment remedy might be sought on property other than the mortgaged property in order to secure the debt. The defendants waived the right to prior notice of and hearing on any prejudgment rem edy that would enable the plaintiff to deprive the defendants of any of their property at any time prior to judgment in any litigation instituted in connection with the note. We are unpersuaded by the defendants' bedrock assertion that the possibility or probability of a deficiency judgment cannot form the basis for a prejudgment remedy because it cannot be known until the completion of the foreclosure action whether there will be such a judgment and, if there is, its amount. While it is true that a deficiency judgment is "contingent" in that it cannot automatically be granted by a court without credible evidence as to an appropriate amount; Eichman v. J & J Building Co., 216 Conn. 443, 449, 582 A.2d 182 (1990); other prejudgment remedies that are based on various causes of action that can lead to judgments are no less contingent. Prejudgment remedies are available in dissolution actions; Atlas Garage & Custom Builders, Inc. v. Hurley, 167 Conn. 248, 355 A.2d 286 (1974); in an action claiming a real estate commission; New England Land Co. v. DeMarkey, 213 Conn. 612, 569 A.2d 1098 (1990); in an action claiming a cobroker commission; Dow & Condon, Inc. v. Anderson, 203 Conn. 475, 525 A.2d 935 (1987); in an action claiming damages for willfully and maliciously causing personal injury; Goodwin v. Pratt, 10 Conn. App. 618, 524 A.2d 1168 (1987); in an action for negligence stemming from a car accident; Anderson v. Nedovich, 19 Conn. App. 85, 561 A.2d 948 (1989); in an action for libel; Haxhi v. Moss, 25 Conn. App. 16, 591 A.2d 1275 (1991); in an action for a percentage of anticipated profits of a partnership; Glanz v. Testa, 200 Conn. 406, 511 A.2d 341 (1986); in an action seeking a judgment requiring the defendant to set up a trust; England v. England, 184 Conn. 85, 440 A.2d 790 (1981); in an action seeking modification of a contract; Three S Development Co. v. Santore, 193 Conn. 174, 474 A.2d 795 (1984); in an action claiming conversion of funds; Mullai v. Mullai, 1 Conn. App. 93, 468 A.2d 1240 (1983); in an action claiming past and future damages due to the sale of a defective product; Bechert v. Petrol Plus, 5 Conn. App. 296, 497 A.2d 1027 (1985); in a breach of contract action; Augeri v. C. F. Wooding Co., 173 Conn. 426, 378 A.2d 538 (1977); and in an action for tortious interference with a contractual relationship. William M. Raveis & Associates, Inc. v. Kimball, 186 Conn. 329, 441 A.2d 200 (1982). The likelihood of a deficiency judgment and the probable amount of such a judgment are much easier to ascertain in this case than in many other cases where prejudgment relief is routinely granted. Furthermore, the time between the institution of a foreclosure action and a deficiency judgment is usually much shorter than the time between the commencement of suit and judgment in other types of actions. Even if an appraisal conducted at the commencement of the foreclosure proceeding does not conclusively establish the anticipated value of the property at the time of foreclosure, such an appraisal would generally be accurate enough for the court to determine the propriety of issuing such relief under the probable cause standard of § 52-278e. Attachment statutes are premised on an ultimate factual contingency, namely, that the defendant may not be able to satisfy the eventual award of damages to the plaintiff. Connecticut v. Doehr, U.S. , 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991). Disputes between debtors and creditors more readily lend themselves to accurate ex parte assessment of the merits of a dispute. Id., 2115. "Regarding damages, if there is an uncontradicted statement in an affidavit that the affiant believes that it is probable that a stated sum may be recovered upon a trial and such belief is founded on reasonable subordinate facts, this will ordinarily be sufficient to support probable cause for an attachment." McCahill v. Town & Country Associates, Ltd., 185 Conn. 37, 39, 440 A.2d 801 (1981). We conclude that a deficiency judgment is not of such an unascertainable nature that it is precluded from serving as the basis of a valid prejudgment attachment upon the requisite showing of probable cause. The defendants also argue that the note is serving as the basis of the attachment, which is prohibited by General Statutes § 49-1 and 49-28. The purpose of § 49-1 is to determine the rights between the parties in one action; it is not intended to act as a bar to the pursuit of ancillary proceedings to secure payment of any judgment. See First Bank v. Simpson, supra; 7 H.R. Proc., Pt. 4, 1957 Sess., p. 2375, remarks of Representative Edward C. Krawiecki. Moreover, to the extent that § 49-1 limits the mortgagee's remedies, it does so only after the entry of a judgment in foreclosure. First Bank v. Simpson, supra, 376. Thus, § 49-1 does not prohibit the granting of a prejudgment remedy prior to judgment in the foreclosure action or during its pendency. Similarly, the defendants assert that "[a] clear reading of [General Statutes § 49-28 ] suggests that the commencement of the foreclosure action acts to stay any other independent actions on the debt, such as a separate action on the note only." A prejudgment attachment, however, is not an independent action on the debt; Associates Financial Services Co. v. Gear, 31 Conn. Sup. 507, 510, 320 A.2d 835 (1974); it is part of the main foreclosure suit. Likewise, the procedure used to obtain a deficiency judgment is also part of the main action. See Practice Book § 528. Also, a request for a deficiency judgment in a foreclosure action is brought by written motion and not by service of process. See id. Thus, the procuring of a prejudgment attachment to secure payment of a deficiency judgment in a foreclosure suit is ancillary to the main foreclosure suit, the purpose of which is to secure a higher priority on the list of the mortgagor's creditors. A deficiency judgment provides a means for a mortgagee to recover any balance due on the mortgage note that was not satisfied by the foreclosure judgment. Maresca v. DeMatteo, 6 Conn. App. 691, 696, 506 A.2d 1096 (1986). It is the "only means of satisfying a mortgage debt when the security is inadequate to make the foreclosing plaintiff whole." Eichman v. J & J Building Co., supra, 449, quoting First Bank v. Simpson, supra, 371. If the mortgagee brings a foreclosure of mortgage action, and pursues a prejudgment attachment, he is not seeking an additional remedy that would be barred by § 49-1 and 49-28, but is merely seeking to establish a higher priority for a remedy to which he is legally entitled under § 49-14. The mortgagee here simply attempted to avail itself of a commonly used procedural device in order to improve its chances to receive full recovery of a debt owed to it. The mortgagee could have sued on its promissory note, independent of a foreclosure action, and obtained a prejudgment remedy. It should not be penalized by combining an action for foreclosure with one for payment of the note. A mortgagee should not be placed at the end of the creditors' line for exercis ing its legal right to initiate an action for foreclosure and payment of the note in which it could seek a deficiency judgment, rather than bringing two separate lawsuits. That would be inconsistent with the conservation of judicial resources. Finally, allowing a mortgagee to secure prejudgment relief will not allow the mortgagee to run roughshod over the rights of the debtor, for, consistent with the granting of any prejudgment remedy, the mortgagee will be granted such relief only upon a showing of probable cause. See General Statutes § 52-278e, 52-2781 Even in a case such as this, where the plaintiff obtained an ex parte attachment pursuant to an express waiver by the defendants, as allowed by § 52-278f, mortgagors can still do as the defendants did, and move to dissolve the attachment. Furthermore, in accordance with § 52-278f, the plaintiff had to provide an affidavit sufficient to show probable cause. We conclude that the ex parte attachment issued by the plaintiffs attorney was valid and in compliance with General Statutes § 52-2781 We further conclude that the prejudgment application for an attachment should have been considered to determine whether there was probable cause to grant it. In assessing that probability, the court would have had to consider both the plaintiff's claim and the defendants' defenses; Haxhi v. Moss, supra; although in this case, the defendants were defaulted for failure to disclose a defense. We hold, as a matter of law, that a mortgagee may obtain additional security for a mortgage debt by means of a prejudgment remedy, if there is probable cause to believe a deficiency judgment will be rendered and a court can make an educated prediction as to the probable amount of the deficiency. Ordinarily, we would remand this case to the trial court so that it could hold an evidentiary hearing to determine whether probable cause exists so as to entitle the plaintiff to prejudgment relief. See Three S Development Co. v. Santore, supra, 175-76. Because a deficiency judgment has already been entered in this case, however, probable cause for an attachment, in the amount of the judgment rendered, obviously exists. The original ex parte attachment is currently in place due to the trial court's stay of its order to dissolve the attachment pending appeal. Because we hold that the ex parte attachment should not have been dissolved, we need not take any action on the court's denial of the plaintiffs application for an attachment. The next question to be resolved is what was the effective date of the ex parte attachment. "Under General Statutes § 52-285, an attachment that is subsequently transformed into a judicial lien following a judgment in the underlying cause of action relates back, for purposes of determining priority, only to the moment when the certificate of attachment is left at the town clerk's office of the town where the property is located." Farmers & Mechanics Savings Bank v. Garafolo, 219 Conn. 810, 819, 595 A.2d 341 (1991). A judgment lien relates back to the date of an attachment. Atlas Garage & Custom Builders, Inc. v. Hurley, supra, 251. A prejudgment attachment relates back to the date of the' attachment; Union Trust v. Heggelund, supra, 626; which in this case is the date it was issued and recorded, namely, July 25, 1991. The original attachment recorded on July 25,1991, however, exceeded the amount of the deficiency judgment eventually obtained and must be reduced accordingly. See Eichman v. J & J Building Co., supra. The judgment dissolving the attachment is set aside and the case is remanded to the trial court with direction to render judgment denying the defendants' motion to dissolve the attachment and to modify the attachment to reflect the amount of the deficiency judgment rendered. In this opinion the other judges concurred. On January 15, 1992, P. B. Real Estate, Inc., was substituted as the plaintiff. Paragraph 11 of the note contained the following language in bold type and capital letters: "Commercial Loan; Prejudgment Remedy Waiver. Makers acknowledge receipt of a copy of this note and certify that this is a commercial transaction and expressly waive all rights under sections 52-278a through 52-278g of the Connecticut General Statutes of prior notice or hearing with respect to any future . . . attachment . . . by the holder against property owned or possessed by Makers. Makers hereby waive the right to prior notice of and a hearing on the right of any holder of this note to a prejudgment remedy, which remedy enables said holder by way of attachment . to deprive Makers of . . . any of their property at any time prior to judgment in any litigation instituted in connection with this note." General Statutes § 52-278f, as amended by Public Acts 1991, No. 91-315, provides: "In an action upon a commercial transaction . . . wherein the defendant has waived his right to a notice and hearing under sections 52-278a to 52-278g, inclusive, the attorney for the plaintiff shall issue the writ for a prejudgment remedy without securing a court order provided that (1) the complaint shall set forth a copy of the waiver; (2) the plaintiff shall file an affidavit sworn to by the plaintiff or any competent affiant setting forth a statement of facts sufficient to show that there is probable cause to sustain the validity of the plaintiffs claim; and (3) the plaintiff shall include in the process served on the defendant a notice satisfying the requirements of subsection (b) of section 52-278e, as amended by section 1 of this act." Subsections (2) and (3) were added by the 1991 public act to take effect July 1, 1991. The plaintiff satisfied all three conditions. An ex parte prejudgment attachment made pursuant to General Statutes § 52-278Í must include in the process served on the defendant a notice that the defendant has a right to a hearing to object to the attachment for lack of probable cause to sustain the claim, or to request that the remedy be modified, vacated or dismissed or to claim the property attached is exempt from execution. No party has raised any issue on appeal as to the constitutionality of § 52-278Í arising from its ex parte nature, allowing an attachment without notice or hearing due to an express contractual waiver. See Connecticut v. Doehr, U.S. , 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991); Shaumyan v. O'Neill, 795 F. Sup. 528 (D. Conn. 1992); Union Trust v. Heggelund, 219 Conn. 620, 624 n.3, 594 A.2d 464 (1991). Nor is there any dispute that the defendants did expressly waive notice and hearing. Although a deficiency judgment was eventually obtained, the issue of whether the July 17,1991 attachment is valid or whether the September 10, 1991 application for an attachment should have been denied does not become moot in this case because if the attachment were proper or if the application should have been granted, the plaintiff would have a priority over the other creditors of the defendants in the collection of the amount of the deficiency as finally determined in February, 1992. See General Statutes § 52-380a (b). Because the dissolution of the attachment was stayed by the trial court, any relief awarded to the plaintiff would have practical consequences. The amount of an ex parte attachment set by the attorney of a plaintiff without prior court approval, if the attachment is provided for in a statute, relates back to its recordation but may not exceed the original amount set. Union Trust v. Heggelund, 219 Conn. 620, 626-29, 594 A.2d 464 (1991). General Statutes § 49-1 provides in relevant part: "The foreclosure of a mortgage is a bar to any further action upon the mortgage . . . note . . . against the . . . persons who are liable for the payment thereof General Statutes § 49-28 applies to foreclosures by sale and provides: "If the proceeds of the sale are not sufficient to pay in full the amount secured by any mortgage or lien thereby foreclosed, the deficiency shall be determined, and thereupon judgment may be rendered in the cause for the deficiency against any party liable to pay the same . . . but all other proceedings for the collection of the debt shall be stayed during the pendency of the foreclosure suit, and, if a deficiency judgment is finally rendered therein, the other proceedings shall forthwith abate. . . ." General Statutes § 49-14 provides for deficiency judgment motions by any party to a mortgage foreclosure action.

The plaintiff's petition for certification for appeal from the Appellate Court, 31 Conn. App. 938 (AC 11742), is denied.

Per Curiam. The judgment is affirmed.

The defendant's petition for certification for appeal from the Appellate Court, 35 Conn. App. 262 (AC 11360), is denied.

Callahan, J. The principal issue in this appeal is whether a municipal civil service commission has the implied authority to retain independent outside counsel when an obvious conflict of interest disqualifies the municipality's corporation counsel from representing the commission. The present case involves a claim for attorney's fees allegedly owed to the plaintiff law firm, Gesmonde, Pietrosimone, Sgrignari, Pinkus and Sachs, by the defendant city of Waterbury (city). The fees were incurred when the Waterbury civil service commission (commission) retained Attorney John Gesmonde to represent it in a dispute over the promotion of five Waterbury police officers to the position of detective. In February, 1988, the Waterbury police department requested that five vacant detective positions be filled. Edmund Jayaraj, the commission's director of personnel, certified a list of five police officers who had attained the highest scores on a previously administered civil service examination given for the purpose of determining the most qualified candidates for the vacant posts. The superintendent of police, in consultation with then Mayor Joseph Santopietro and then corporation counsel Francis Donnarumma, however, selected only one of the candidates on the certified list for promotion, and promoted four other candidates who were not on the certified list. The commission immediately questioned the promotions. The police union, Local 1237, American Federation of State, County and Municipal Employees (union), and the individual officers who were passed over for promotion also disputed the promotions. They pursued an action in the Superior Court seeking the ouster of the officers who were not appointed from the certified list. In that action, the city intervened against the union and appointed independent counsel to represent the appointed officers. Although the commission was not a party, the commission chairman, Michael Stolfi, orally requested that Donnarumma provide independent counsel to represent the commission. Although this request initially received favorable consideration by Donnarumma, it was denied after consultation with the mayor. Because the commission was convinced that its interest in upholding the certified list would not be represented adequately by the corporation counsel, the commission formally requested, in writing, that it be allowed to hire independent counsel. The corporation counsel denied the commission's request. Thereafter, the commission unanimously voted to retain the plaintiff to represent the commission, and, accordingly, wrote to Gesmonde requesting that he "review and represent the Civil Service Commission including the instituting of law suits in the matter of the illegal appointments of Police Detectives and to take such action to assure that the Civil Service Rules and Regulations are upheld . . . ." The letter to Gesmonde directed that the bill for his services be sent to the city, in accordance with division 2, § 210 of the Waterbury city charter. The plaintiff thereafter brought two actions on behalf of the commission to rescind the promotions to detective of the officers who were not on the certified civil service list. The actions were a writ of quo warranto and a writ of mandamus. The trial court rendered judgment in favor of the commission in both actions, finding that the appointments that had been made outside of the certified list were illegal. Civil Service Commission v. Pekrul, 42 Conn. Sup. 107, 601 A.2d 1044 (1991). In a per curiam opinion adopting the trial court's memorandum of decision, this court affirmed its judgments. Civil Service Commission v. Pekrul, 221 Conn. 12, 601 A.2d 538 (1992). After the appeal to this court had been decided, the plaintiff requested payment for its legal services from the city. The request was denied. The plaintiff then filed this action alleging a breach of contract for legal services, or, in the alternative, a quantum meruit count for the fair value of the legal services rendered by it. After a trial, the court concluded that the commission had been authorized to hire the plaintiff, that a binding contract existed and that the plaintiff was entitled to legal fees in the amount of $41,164.99. After the trial court denied the city's motion for a new trial, the city appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). On appeal, the city claims that the trial court improperly: (1) concluded that the commission had the authority to hire the plaintiff and that the city was bound to pay for the services that the plaintiff had rendered to the commission; (2) issued its memorandum of decision without having considered the city's trial brief; (3) determined that the city's trial brief had not been timely filed; and (4) denied the city's motion for a new trial. We affirm the judgment of the trial court. I The city first argues that the commission lacked the authority to bind the city contractually to fund the plaintiff's legal services to the commission. The city's argument raises an issue of first impression for this court. In Pepe v. New Britain, 203 Conn. 281, 524 A.2d 629 (1987), we affirmed the trial court's conclusion that the New Britain common council had the implicit authority to enact a resolution allowing it to hire independent counsel in a dispute between the mayor and the common council, where an obvious conflict of interest existed for the city's corporation counsel. "[W]here such a conflict of interest exists, the common council has implied authority to engage separate legal counsel." Id., 289. On appeal, however, the defendant in Pepe did not contest the trial court's ruling on that particular point. Moreover, the common council, a legislative body, is of a different genre than a commission. Under the circumstances of this case, we conclude nonetheless that, because of the conflict of interest between the commission and the corporation counsel who ordinarily would have represented the commission, the commission had the inherent power to hire outside counsel for the purposes of representation of its interests. As the record shows, the corporation counsel was faced with a direct conflict between the city's position and that of the commission regarding the promotion of the five police officers to detective. The corporation counsel supported the mayor's position that the officers were properly promoted despite the fact that the civil service list was ignored. Moreover, in a proceed ing before the state department of labor, the corporation counsel had argued that police officers could be promoted to detective regardless of the commission's certified list. When the labor board ruled that the promotions had been in violation of the charter and the collective bargaining agreement, the city appealed the decision to the Superior Court. Although that court upheld the labor board's decision, the contrary position was vigorously urged upon the court by the corporation counsel on behalf of the city. Waterbury v. State Board of Labor Relations, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 390686 (November 21, 1991). It is apparent that not only was the corporation counsel opposed to the commission's position, but was actively resisting it every step of the way.* Because of this obvious conflict of interest, the commission had the implied authority to hire independent counsel to represent its interests. The weight of authority supports our conclusion. "As a general rule, when a municipal corporation has legal counsel charged with a duty of conducting the legal business of a governmental agency, contracts with other attorneys for additional or extra legal services are void." Coventry School Committee v. Richtarik, 122 R.I. 707, 715, 411 A.2d 912 (1980). There is, however, a well recognized exception to the general rule. "Notwithstanding lack of specific statutory authority, a municipal board or officer possesses implied authority to employ counsel in the good faith prosecution or defense of an action undertaken in the public interest, and in conjunction with its or his official duties where the municipal attorney refused to act, or was incapable of, or was disqualified from, acting. . . . This authority is necessarily implied in order to enable the board to effect the purposes of its creation and to allow it to properly function. . It should be abundantly clear that in view of the stringent requirements that must be satisfied, the policy underlying the general rule of express authority is certainly not compromised by this exception." (Citations omitted.) Cahn v. Huntington, 29 N.Y.2d 451, 455, 278 N.E.2d 908, 328 N.Y.S.2d 672 (1972); see Coventry School Committee v. Richtarik, supra, 715 (same); State v. Volkmer, 73 Wash. App. 89, 94, 867 P.2d 678 (1994) (same); see also Riley, Hoggatt & Suagee, P.C. v. English, 177 Ariz. 10, 13, 864 P.2d 1042 (1993) (inherent power of justice of peace to hire counsel to assert justice of peace's position in litigation against other branches of government); Krahmer v. McClafferty, 282 A.2d 631, 633 (Del. Sup. 1971) ("when conflict exists and regardless of the Charter provisions the better reasoned legal authorities clearly hold that both parties are entitled to their own representation . . ."); Hanna v. Rewkowski, 81 Misc. 2d 498, 500, 365 N.Y.S.2d 609 (1975) ("[i]t is further clear that the courts in this State have recognized an implied authority in municipalities for various boards or branches to appoint independent counsel in cases where there is a clear conflict of interest despite the fact that applicable statutes make no such provision"); 10 E. McQuillin, Municipal Corporations (3d Ed. 1990) § 29.12 ("[contracts for outside legal services are sometimes sustained . . . where the city attorney is ill, disqualified, absent, or unavailable; or where the legal official of the corporation refuses to appear and perform the necessary services; or where he or she has, or represents, adverse interests . . ."), citing Pepe v. New Britain, supra, 203 Conn. 281. The city also claims that even if the commission had authority to hire independent counsel, the plaintiffs involvement in this dispute was superfluous because there were other ongoing legal proceedings at the relevant time that eventually resulted in the same outcome, i.e., a determination that promotions outside of the certified civil service list were illegal. We disagree. While it is true that other proceedings were in progress concerning the promotion of individual police officers in Waterbury, in neither of those actions were the particular interests of the commission in maintaining the integrity of the civil service represented. The primary purpose of the civil service rules is to "provide for the recruitment and development of the best available employee for each position in the classified service of the city of Waterbury at all times. They provide for establishing orderly procedures for administering the Civil Service System in such a way to insure . . . [t]hat all appointments and promotions to positions in the classified service shall be on the sole basis of merit and fitness, which, as far as practicable, shall be ascertained by means of competitive examinations." City of Waterbury Civil Service Rules § 2. The main function of the commission is to administer objective examinations to job candidates, to maintain lists that rank the candidates according to test scores and to give the highest ranking candidates' names to the authority who will appoint the most qualified candidates to the available positions. It is that function that the commission sought to vindicate, and it was not clear that that function would have been vindicated in the actions pursued by the police union or by the individual officers. Whether the certified civil service lists, established by the commission, could be disregarded by the mayor and other officials of the city, however, was the only issue in the legal actions initiated and brought to a successful conclusion by the plaintiff. "[A] city, including its commissions, ha[s] no source of authority beyond the charter. '[TJheir powers are measured and limited by the express language in which authority is given or by the implication necessary to enable them to perform some duty cast upon them by express language.' Turney v. Bridgeport, 55 Conn. 412, 414, 12 A. 520 (1887)." (Emphasis added.) Parretta v. New Britain, 185 Conn. 88, 92-93, 440 A.2d 823 (1981). Division 2, § 210 of the Waterbury city charter provides that the "financial authorities of the City of Waterbury shall provide necessary funds to carry out the purpose of this Charter Amendment . . . ." Because the plaintiff represented the commission in a defense of the commission's essential purpose, the plaintiffs legal fees were "necessary funds" under § 210 that the "financial authorities" of the city were required to provide to carry out the purpose of the civil service charter amendment. Under the circumstances, we conclude that a direct and obvious conflict of interest existed for the corporation counsel and that he would have been disqualified from representing the commission even if he had so desired. Additionally, the very purpose of the civil service commission was being challenged by the blatant disregard of the certified civil service list by the appointing officials. Therefore, in order for its unique interests to be represented in the underlying dispute the commission had the implied authority, under the facts of this case, to engage the plaintiffs legal services. We conclude, therefore, that the city was legally obligated to provide the funds to pay for those services. II In its memorandum of decision, the trial court noted that while the plaintiff had filed a "comprehensive brief; the [city] has filed no brief" as ordered by the trial court. In fact, however, the city had filed a trial brief that had escaped the court's attention. Although at a hearing on the city's motion for a new trial the trial court found that the city's brief had not been timely filed, it did consider the brief stating: "I am going to find that the brief of the . . . City of Waterbury, was not timely filed. However, I think under the circumstances the court should consider the brief. And, I have done so." The city argues that the trial court improperly (1) had ruled that its trial brief had not been filed in a timely manner and (2) had denied its motion for a new trial having failed to consider the city's brief before composing its memorandum of decision. " 'Appellate review of a trial court's decision granting or denying a motion for a new trial must take into account the trial judge's superior opportunity to assess the proceedings over which he or she has personally presided. . . . [W]e have . . . accordingly confined our role to a determination of whether there has been an abuse of discretion.' " State v. Ross, 230 Conn. 183, 227-28, 646 A.2d 1318 (1994), quoting State v. Hammond, 221 Conn. 264, 269-70, 604 A.2d 793 (1992). Because the trial court considered the city's motion for a new trial as a motion to reconsider, we need not reach the issue of whether the court properly found that the city's trial brief was not timely. The court correctly determined that its failure initially to consider the city's trial brief after a full trial on the merits did not meet the standards for a new trial pursuant to General Statutes § 52-270. Instead, the court reconsidered its decision in light of the missing brief and confirmed its original ruling. We conclude that the trial court did not abuse its discretion. The judgment is affirmed. In this opinion the other justices concurred. Promoted were Edward Pekrul, twenty-fourth on the eligibility list, Joseph Pesce, second, James Clary, ninth, Phillip Rinaldi, seventeenth, and Edward Stephens, fortieth. The Superior Court action brought by the union and the individual officers was stayed pending arbitration, and eventually was dismissed after the arbitrator ruled that only the commission had standing to seek implementation of the certified list. The commission made the request for independent counsel through the corporation counsel pursuant to § 1903 of the Waterbury city charter, which provides in part: "qualifications, powers and dutes. . . . [The corporation counsel] may, if, in his opinion, the interest of the city requires it, by and with the consent of the mayor, without regard to the civil service amendments, retain additional temporary counsel to aid him in behalf of the city in the conduct of Ms office." Division 2, § 210 of the Waterbury city charter provides: "financial support from city. The financial authorities of the City of Waterbury shall provide necessary funds to carry out the purpose of this [civil service] Charter Amendment, and shall provide the personnel director and his department with adequate office space, equipment and facilities." Under Connecticut law, both actions are necessary to accomplish the desired result: quo warranto to remove the incumbents, and mandamus to secure the appointments of the five highest ranking individuals on the commission's list. Civil Service Commission v. Pekrul, 41 Conn. Sup. 302, 303-304, 571 A.2d 715 (1989). Because we affirm the judgment of the trial court on the contract claim and because the quantum meruit issue was not briefed by the parties, we need not address this alternative count. The trial court later granted the plaintiffs motion for rectification and awarded interest on the judgment at 12 percent pursuant to General Statutes § 52-192a, because the city did not accept the plaintiffs November 30, 1992 offer of judgment. On appeal, the city also argues that no contract existed between the commission and the plaintiff because there was no retainer agreement that conformed to rule 1.5 of the Rules of Professional Responsibility. Rule 1.5 addresses only the issue of the reasonableness of attorney's fees and, therefore, is inapposite as to whether a contract for legal services existed. Moreover, the trial court concluded that there was an agreement between the commission and the plaintiff regarding representation in this matter, for a fee of $85 per hour. The dispositive issue is not whether a contract existed, but, rather, whether the commission had the authority to bind the city to fund the services rendered. In response to the question "did you ever speak to the mayor about his position concerning the appointments that were at issue," Stolfi testified at trial that "in the beginning [the mayor] tried to get me to compromise my vote and not vote for making it a promotion, number one. Number two, when he was against us doing this because it was stated to me in this fact that it's our turn to have patronage now; we're in office, the Democrats had it all this time; now it's our turn." The labor board action involved only three officers, Edward Stephens, James Egan and Francis Dabbo, and arose from a 1987 agreement between the city and the union. Only Stephens was involved in the actions brought by the plaintiff in this case. At oral argument before this court, counsel for the city conceded that he made the decision in 1991 not to appeal from the judgment of the Superior Court that affirmed the labor board decision. See footnotes 2 and 10. Division 2, § 212 provides that "[provisions of the Charter of the City of Waterbury, or provisions of any ordinance of the City of Waterbury inconsistent with or contrary to this Charter Amendment are hereby amended." The city argues that § 1903 of the charter gives the sole authority to appoint counsel to the corporation counsel. Section 212, however, amends § 1903 in that it is inconsistent with the charter amendment. Therefore, an implied authority can be found notwithstanding the express provisions of § 1903. See footnote 3. General Statutes § 52-270 provides in relevant part: "causes for which new trials may be granted, (a) The superior court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed . . . ."

The petitioner Angel David Baez' petition for certification for appeal from the Appellate Court, 34 Conn. App. 236 (AC 11719), is denied.

Callahan, J. The plaintiff, the commissioner of the department of labor, brought this action on behalf of two real estate salespersons, Marilyn Gluck and Marilyn Lyren, against the defendant, William Raveis Real Estate, Inc., pursuant to General Statutes § 31-72, to collect unpaid remuneration allegedly owed to Gluck and Lyren by the defendant. Although the claimants' cases were tried together, each has a unique factual situation that will be discussed individually. Gluck was a real estate salesperson for the defendant from January, 1982, until March, 1988. Gluck claimed that in 1987, William Raveis, the defendant's president, promised a full commission to the salesperson who first introduced him to new office space suitable for the company to purchase or lease in New Haven. The claimant alleged that she was the first person to introduce Raveis, through her office manager Carole Anne Pepe, to a property at 199 Whitney Avenue in New Haven, which eventually was leased by the defendant for business purposes. Two other salespersons in the same office also claimed that they were entitled to receive a commission from the defendant because of the defendant's lease of the property. On June 21, 1988, after Gluck had left the company, the defendant's regional vice-president, Chris Cooke, informed Gluck by letter that she would be paid only $2400 of the $12,000 commission received by Raveis, $6000 of which had been expended for legal fees necessitated by problems connected with the lease of the property. Of the $6000 remaining, Cooke determined that Gluck was entitled to 40 percent, while the other two salespersons who claimed the commission were each entitled to receive 30 percent of the commission. Pursuant to § 31-72, the plaintiff brought this action on Gluck's behalf to collect the full amount of the unpaid commission allegedly due Gluck. From 1986 to 1988, Lyren was the sales manager for the defendant's Greenwich office and later for the defendant's Trumbull office. For the first year Lyren was paid $2000 per month plus a 5 percent override on every commission generated by the office. Thereafter she was paid a straight 8 percent override on commissions. Lyren alleged that she was owed overrides on transactions on which binders had been executed before she had left the company. After she resigned, Lyren received no compensation from the defendant despite her repeated requests for payment of the overrides on those real estate transactions. The plaintiff brought this action on behalf of Lyren pursuant to § 31-72. The claims of both Gluck and Lyren were tried together. The trial court found that both claimants were employees for purposes of § 31-72 as that term is defined in General Statutes § 31-71a. The court thereafter determined that the plaintiff was entitled to recover the sum of $24,068.29; $12,000 of that sum was owed to Gluck and $12,068.29 was owed to Lyren. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). The only issues before us are whether the trial court was correct in finding that: (1) the claimants, as employees rather than independent contractors, fell within the purview of § 31-72 and 31-71a; and (2) Lyren had met her burden of proof with regard to damages. We conclude that the trial court correctly determined both issues and affirm the trial court's judgment. I The plaintiff successfully argued to the trial court that the claimants were employees of the defendant company and that consequently she was authorized to bring a civil action pursuant to § 31-72 to collect unpaid wages owed to them. The defendant argued in the trial court and in this court that the claimants were not employees, but rather were independent contractors, and therefore were not within the purview of § 31-72. We agree with the plaintiff. The defendant's first argument is that the claimants' status as independent contractors was definitively established by Gluck's admission to that effect during her trial testimony. "Whether a party's statement is a judicial admission or an evidentiary admission is a factual question for the trial court." C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 6.5, p. 132, citing Sweet v. Sweet, 190 Conn. 657, 662, 462 A.2d 1031 (1983) ("[wjhether these statements when viewed as a whole result in a judicial admission is a determination best left to the trial court which observed the witnesses, heard the testimony and was the sole judge of the weight to be accorded such testimony"). The trial court, in holding that the claimants were employees of the defendant and not independent contractors, necessarily concluded that Gluck's statement was not a judicial admission. If Gluck's statement was merely an evidentiary admission, her view of her relationship to the defendant is not dispositive. For instance, in Latimer v. Administrator, 216 Conn. 237, 251, 579 A.2d 497 (1990), we found an employer-employee relationship even in the face of a signed agreement stating that the parties were independent contractors. In determining whether an employment relationship exists, " '[w]e look beyond the plain language of the contract to the actual status in which the parties are placed.' " Id., 252. The defendant's next argument is that the claimants in this case could not be considered employees in light of the language of the governing statutes. Section 31-72 allows the labor commissioner to collect the full amount of any unpaid wages that an employer has failed to pay an employee. The terms employer, employee and wages are defined in § 31-71a. An employer "includes any individual, partnership, association, joint stock company, trust, corporation, the administrator or executor of the estate of a deceased person, the conservator of the estate of an incompetent, or the receiver, trustee, successor or assignee of any of the same, employing any person . . . ." General Statutes § 31-71a (1). An employee "includes any person suffered or permitted to work by an employer." General Statutes § 31-71a (2). The term wages is defined to include "commission." General Statutes § 31-71a (3). The purpose of § 31-72 is remedial, and therefore it must be given a liberal construction in favor of those whom the legislature intended to benefit. Chrysler Corp. v. Maiocco, 209 Conn. 579, 595, 552 A.2d 1207 (1989). From a reading of the plain language of these statutory provisions, it would appear that a real estate salesperson, engaged by a real estate brokerage firm doing business as a corporation and compensated by commission, would be someone who was "suffered or permitted to work by an employer," and hence an employee. General Statutes § 31-71a (2). Application of our prior case law confirms that the trial court properly concluded that these particular claimants were employees, within the purview of § 31-72, rather than independent contractors. "The determination of the status of an individual as an independent contractor or employee is often difficult . . . and, in the absence of controlling considerations, is a question of fact." (Citation omitted; internal quotation marks omitted.) Latimer v. Administrator, supra, 216 Conn. 249. It has long been established that "[t]he fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work." (Internal quotation marks omitted.) Id., 248; Silverberg v. Great Southwest Fire Ins. Co., 214 Conn. 632, 639, 573 A.2d 724 (1990); Panaro v. Electrolux Corp., 208 Conn. 589, 603, 545 A.2d 1086 (1988); F.A.S. International, Inc. v. Reilly, 179 Conn. 507, 512, 427 A.2d 392 (1980); Beaverdale Memorial Park, Inc. v. Danaher, 127 Conn. 175, 179, 15 A.2d 17 (1940); Aisenberg v. C. F. Adams Co., 95 Conn. 419, 421, 111 A. 591 (1920). "The test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent." (Internal quotation marks omitted.) Latimer v. Administrator, supra, 248; Caraher v. Sears, Roebuck & Co., 124 Conn. 409, 413-14, 200 A. 324 (1938). An independent contractor has been defined as "one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work." (Internal quotation marks omitted.) Silverberg v. Great Southwest Fire Ins. Co., supra, 639; Alexander v. R. A. Sherman's Sons Co., 86 Conn. 292, 297, 85 A. 514 (1912). The so-called "ABC test" which is used to determine the existence of an employment relationship for the purpose of unemployment compensation; see General Statutes § 31-222 (a) (1) (B) (ii); F.A.S International, Inc. v. Reilly, supra, 179 Conn. 512; is also applicable here. The paramount factor in that three part test to determine whether a person is an employee is the first, which is the right to control not only the results of work but also the methods of work. This control test is by nature a balancing test. " 'The determination of general control is not always a simple problem. Many factors are ordinarily present for consideration, no one of which is, by itself, necessarily conclusive.' " Silverberg v. Great Southwest Fire Ins. Co., supra, 214 Conn. 639; Bourgeois v. Cacciapuoti, 138 Conn. 317, 321, 84 A.2d 122 (1951). In the present case, the trial court found that the defendant retained the right to control, and actually exerted a great deal of control over, the real estate salespersons and sales managers affiliated with it. Both salespersons and managers were required to attend mandatory office meetings; both did business under the defendant's name; both used the company letterhead, business cards and supplies; both were required to attend training sessions; and both were threatened with discharge if they did not comply with these requirements. "The right to terminate [an employment] relationship without liability is not consistent with the concept of an independent contract." (Internal quotation marks omitted.) Latimer v. Administrator, supra, 216 Conn. 249. Additionally, the managers were required to read The Book of Five Rings and to discuss a book report about its themes, "discussing how we were then to treat our competitors like the Samurai warriors." Gluck was required to put in specified hours of floor time and Lyren was required to work forty hours per week plus put in an office appearance on weekends. The defendant claims that both claimants were independent contractors because they received 1099 forms rather than W-2 forms for income tax purposes, and that they did not receive medical benefits. While these factors weigh in the defendant's favor, they are insufficient to persuade us that the claimants were not employees for the narrow purposes of § 31-72. The defendant also claims that its real estate salespersons are not employees because they explicitly are not covered under the Unemployment Compensation Act, pursuant to General Statutes § 31-222 (a) (5) (K), or the Workers' Compensation Act, pursuant to General Statutes § 20-312b. As the plaintiff aptly notes, however, the legislature did not exempt real estate salespersons from § 31-72, and in fact defined "employee" quite broadly in § 31-71a (2). If the legislature had intended to exempt real estate salespersons from the operation of § 31-72, it obviously was capable of doing so, as is evidenced by their exemption from the Unemployment and Workers' Compensation Acts. Its failure to do so is an indication of a contrary intention. See In re Ralph M., 211 Conn. 289, 306, 559 A.2d 179 (1989) ("we apply the tenet of statutory construction that [wjhere a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject . is signifi cant to show that a different intention existed" [internal quotation marks omitted]). The factors delineated above indicate that the right of the defendant to control its employees far outweighs the factors that indicate an independent contractor relationship. See Silverberg v. Great Southwest Fire Ins. Co., supra, 214 Conn. 639. Because the ABC test is conjunctive, and because we conclude that the defendant in the present case had the right to control the claimants, we need not address the second and third parts of the test. See footnote 8. We conclude that, in the particular circumstances presented, the trial court's determination that Gluck and Lyren were employees of the defendant, bringing them within the purview of § 31-72, is legally and logically correct and finds support in the facts that reasonably could have been found by the trial court. Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). II The defendant next claims that the plaintiff failed to prove that the real estate transactions for which binders had been executed while Lyren was in the defendant's employ actually had closed so as to enable the defendant to receive its commission. Because it was conceded that Lyren was not eligible to receive her overrides until the defendant received its commissions, the defendant maintains that the plaintiff had not met her burden of proof with regard to damages in Lyren's case. We disagree. It is axiomatic that the trier of fact may draw reasonable and logical inferences from the facts proven. State v. Ford, 230 Conn. 686, 692, 646 A.2d 147 (1994). In doing so, finders of fact "are not expected to lay aside matters of common knowledge or their own obser vation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct." (Internal quotation marks omitted.) Id., 693. Our review of the fact finder's inferences is limited to determining whether the inferences drawn are " 'so unreasonable as to be unjustifiable.' " Id., 692, citing State v. Hayes, 127 Conn. 543, 555, 18 A.2d 895 (1941). In the present case, the plaintiff had the burden to prove, by a preponderance of the evidence, that the defendant owed Lyren the overrides on transactions that had been hindered before Lyren had left the defendant's employ, but that had closed after she had left. The plaintiff produced evidence that binders for thirty-seven properties were outstanding at the time Lyren left the defendant's employ. The trial court found that "[tjhese binders were all based on contracts to purchase real estate as to which deposits had been lodged with the defendant and, although it is possible that a purchaser would renege on one, it is unlikely and such a remote possibility may reasonably be eliminated in estimating the amount of the commissions received by the defendant." The evidence did not reflect, and the defendant does not point to anything in the record to indicate, that there were contingencies in these underlying contracts. The binder sheets produced by the plaintiff listed, for each property, only a contract date and a closing date. It was the plaintiffs burden to prove, by a preponderance of the evidence, that Lyren was owed her overrides. In order to satisfy the burden of proof by a preponderance of the evidence, all the plaintiff need to have shown was that it was more likely than not that the defendant received its commissions on the transactions on which binders had been executed before Lyren had left the defendant's employ. See C. Tait & J. LaPlante, supra, § 4.4.1, p. 73 ("[t]he burden of persuasion can be satisfied by circumstantial evidence if the trier finds that the facts from which the trier is asked to draw the inference are proven and that the inference is not only logical and reasonable, but strong enough so that it can be found to be more probable than not"). The trial court, sitting as a finder of fact, was free to apply its common knowledge and experience to infer from the facts proven that it was more likely than not that the transactions on which binders had been executed resulted in closings from which the defendant received its commissions. Under the limited circumstances of this case, we find that the trial court's inference was not "so unreasonable as to be unjustifiable." Lyren, therefore, was entitled to her overrides. The judgment is affirmed. In this opinion Peters, C. J., and Katz and Palmer, Js., concurred. General Statutes § 31-72 provides in relevant part: "When any employer fails to pay an employee wages in accordance with the provisions of sec tions 31-71a to 31-71Í . . . [t]he labor commissioner may collect the full amount of any such unpaid wages . In addition, the labor commissioner may bring any legal action necessary to recover twice the full amount of unpaid wages . . . and the employer shall be required to pay the costs and such reasonable attorney's fees as may be allowed by the court. . . ." An override is the manager's commission, which is taken out of the company's commission. ' 'Binder' ' as used in this case means that the property to be sold is under a legally binding contract between the buyer and seller. According to Lyren's testimony, "In our industry, a binder is—when you have an accepted offer brought into the company, it is a form we use to complete the information for the transaction, that then is fed into a computer. And from that, then, when the transaction closes, the agent, the company, the regional and the office managers are all paid." The transaction on which a binder has been executed is "[w]hen they were ready to—you know, a completed deal, ready, waiting, just, for a closing." Originally, there was a third claim brought by Anthony Shays. His claim was settled prior to trial. General Statutes § 31-71a provides: "payment of wages: definitions. Whenever used in sections 31-71a to 31-71Í, inclusive: "(1) 'Employer' includes any individual, partnership, association, joint stock company, trust, corporation, the administrator or executor of the estate of a deceased person, the conservator of the estate of an incompe tent, or the receiver, trustee, successor or assignee of any of the same, employing any person, including the state and any political subdivision thereof; "(2) 'Employee' includes any person suffered or permitted to work by an employer; "(3) 'Wages' means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation; "(4) 'Commissioner' means the labor commissioner." "The distinction between judicial admissions and mere evidentiary admissions is a significant one that should not be blurred by imprecise usage. . . . While both types are admissible, their legal effect is markedly different; judicial admissions are conclusive on the trier of fact, whereas evidentiary admissions are only evidence to be accepted or rejected by the trier." C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 6.5, p. 132. "A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it." (Internal quotation marks omitted.) Pedersen v. Vahidy, 209 Conn. 510, 519-20, 522 A.2d 419 (1989). In this case, Gluck's characterization of herself as an independent contractor is better defined as a legal conclusion made by a lay witness that cannot, and was not, construed as a judicial admission of a fact. "Under the ABC test any service provided by an individual is considered employment, unless and until the recipient of the services provided has sustained the burden of showing to the satisfaction of the administrator that (I) such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under his contract for the performance of service and in fact; and (II) such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and (III) such individual is customarily engaged in an independently established trade occupation, profession or business of the same nature as that involved in the service performed (Internal quotation marks omitted.) Latimer v. Administrator, supra, 216 Conn. 247; F.A.S. International, Inc. v. Reilly, supra, 179 Conn. 511-12. This test is codified in § 31-222 (a) (1) (B) (ii) for the purpose of defining employment for unemployment compensation benefits. General Statutes § 31-222 (a) (5) provides in relevant part: "No provision of this chapter . . . shall apply to any of the following types of service or employment, except when voluntarily assumed . . . "(K) Service performed . . . by an individual as a real estate salesman, if all such service is performed for remuneration solely by way of commission . . . ." General Statutes § 20-312b provides in relevant part: "A licensed real estate broker or real estate salesman . . . shall not be considered an employee under the provisions of section 31-275 [the definitional section of the Workers' Compensation Act] if substantially all of the remuneration for the services performed by such . . . salesman . is directly related to sales or other output rather than to the number of hours worked See footnote 3. It is true that the plaintiff could have, and perhaps should have, searched the land records with regard to the thirty-seven different properties involved in this case. The plaintiff, however, attempted to ascertain this information through discovery. The plaintiff made discovery requests several times by way of subpoenas duces tecum. Despite a court order to comply with the plaintiffs production requests, the defendant did not produce the documents that were requested. The plaintiff also attempted to depose William Raveis, the president of the company, but that deposition was abruptly terminated by Raveis' attorney. William Eagan, an investigator with the department of labor, testified that the defendant did not return his calls. He also testified that he sent a letter to the defendant "requesting either payment or information as to why the monies were not due, and that was again ignored." Eagan went on to say that "[tjhere was no cooperation whatsoever at any time." It is apparent that the defendant refused to cooperate in discovery, which is directly contrary to the open discovery doctrines in Connecticut. See Practice Book § 218; Lougee v. Grinnell, 216 Conn. 483, 489, 582 A.2d 456 (1990) ("Practice Book § 218 . . . liberally permits discovery of information 'material to the subject matter involved in the pending action' " [emphasis added]); Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 140, 491 A.2d 389 (1985) (this jurisdiction has liberal discovery doctrines). Further, defense counsel conceded at oral argument before this court that such documents existed and that he had had them with him during the trial but that he never turned them over because the plaintiffs attorney neglected to request specifically that they be handed over at trial. It would not be wise precedent to hold that by stonewalling, a defendant could ensure the defeat of its opponent's claim, especially where the defendant had superior information regarding that claim.

Cretella, J. In this action seeking dissolution of marriage and an equitable decree voiding certain fraudulent conveyances, the defendants Frank Farrell, Susan Cifarelli and the East Pearl Development Company appeal from the judgment rendered in favor of the plaintiff, Joanne Farrell. The case was tried before a state trial referee, who granted the dissolution. As to the fraudulent conveyance claim, he found that the named defendant was the equitable owner of three properties located in New Haven and North Haven. The referee ordered two of these three properties transferred to the plaintiff. The defendants argue on appeal that (1) the findings with respect to the three properties were not supported by the record, (2) the referee abused his discretion in awarding attorney's fees, (3) the fraudulent conveyance of the three properties was not proven by clear and convincing evidence, and (4) the referee abused his discretion in ordering two of the properties transferred to the plaintiff. We affirm the judgment as to the finding that the properties had been fraudulently conveyed. We must consider, however, who is liable for the payment of the plaintiff's attorney's fees, as well as whether the court abused its discretion with regard to the amount of the fee awarded. The referee found the following facts. The plaintiff and the named defendant were married in 1969 and were separated in 1982. In 1982, after leaving the plaintiff, the named defendant moved in with the defendant Susan Cifarelli. In 1973, the named defendant had purchased a property located at 77 East Pearl Street in New Haven for $8000. He testified that after he "fixed . . . up" the property, he "sold it" to the defendant Leon Crockett for the mortgage balance of $4365 and cash of $6000. The referee found that 77 East Pearl Street earns rents of $1000 per month and that the "sale" of the property for the price stated was not "believable." In 1976, the named defendant and the defendant Pasquale Palmieri bought the second of the subject properties, located at 177-179 Ferry Street in New Haven. The purchase price was $33,000. After the named defendant "remodeled" it, the property returned rents of $2340 per month. In 1978, the named defendant sold his "half interest" in this property to Palmieri for $7700, who in turn later transferred it to Crockett. The referee found that $7700 was a fraction of what it cost the named defendant to buy the property, and that this "sale" also was not "believable." The referee noted that according to the testimony at trial, Crockett had formed a corporation, the East Pearl Development Company, to own, hold title to, and administer the two properties at 77 East Pearl Street and 177-179 Ferry Street. After creation of the corporation, Crockett transferred his stock to Cifarelli. The referee therefore found that "with one stroke of the pen . . . Cifarelli, who had Crockett's power of attorney, deeded these properties to herself, with her signature, without any consideration being passed." The last of the subject properties, 12 Chapel Hill Road in North Haven, was purchased by Cifarelli herself. The referee found, however, that none of the moneys allegedly used to purchase the property came from Cifarelli. Rather, the referee found that the funds came from the named defendant. The referee farther noted that Darlene Farrell, the daughter of the named defendant, testified "that she had been told on several occasions by [the named defendant] and . . . Cifarelli that [the named defendant] owned all of the properties and that the East Pearl Development Company had been formed to make sure that the plaintiff . . . would be unable ever to get anything." The referee granted the dissolution and ordered that two of the properties, 77 East Pearl Street and 177-179 Ferry Street, be conveyed or transferred to the plaintiff from the defendants, pursuant to General Statutes § 46b-66a and 46b-81. The court farther ordered the defendants Frank Farrell, Cifarelli and Palmieri, jointly and severally, to pay the plaintiffs attorney's fee of $30,000. I The defendants make several arguments regarding the facts as found by the referee. They first argue that the findings of the referee with respect to the three properties were not supported by the evidence. " 'The factual findings of a trial court on any issue are reversible only if they are clearly erroneous. . . .This court cannot retry the facts or pass upon the credibility of the witnesses.' (Citations omitted.) Holy Trinity Church of God in Christ v. Aetna Casualty & Surety Co., 214 Conn. 216, 223, 571 A.2d 107 (1990)." Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 40-41, 632 A.2d 1134 (1993). "A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . ." (Citations omitted; internal quotation marks omitted.) Id., 41. We are unable to conclude, on the basis of the record before us, that the referee's findings were clearly erroneous. The defendants also argue that the trial court incorrectly found by clear and convincing evidence that the three properties had been fraudulently conveyed. "A party who seeks to set aside a conveyance as fraudulent bears the burden of proving that the conveyance was made without substantial consideration and that, as a result, the transferor was unable to meet his obligations (constructive fraud) or that the conveyance was made with fraudulent intent in which the transferee participated (actual fraud)." Tessitore v. Tessitore, 31 Conn. App. 40, 42, 623 A.2d 496 (1993). "A fraudulent conveyance must be proven by clear and convincing evidence." Id., 43. Whether a conveyance is fraudulent is purely a question of fact. Tyers v. Coma, 214 Conn. 8, 11, 570 A.2d 186 (1990). For the reasons stated above, we cannot conclude that the trial court's factual findings that the properties had been fraudulently conveyed were clearly erroneous. Finally, the defendants argue that the trial court abused its discretion in ordering the East Pearl Street and Ferry Street properties transferred to the plaintiff. Specifically, the defendants claim that the court did not consider all of the statutory criteria required by General Statutes § 46b-81 (c) before ordering the properties transferred to the plaintiff. The trial court specifically noted, however, that it had "properly considered and weighed the application of all statutory relevant facts prior to deciding this case." On the basis of the record before us, we cannot say that the trial court abused its discretion in ordering the properties transferred to the plaintiff. II The defendants make several arguments with respect to the award of attorney's fees. They first argue that the court abused its discretion under General Statutes § 46b-62 by awarding attorney's fees against the non-spouse defendants, Cifarelli and Palmieri. Pursuant to § 46b-62, "the court may order . . . either spouse or either parent to pay the reasonable attorney's fees of the other in accordance with their respective finan cial abilities and the criteria set forth in section 46b-82." (Emphasis added.) Accordingly, attorney's fees in this case may be awarded only against a spouse. While not disputing this, the plaintiff presents several arguments in support of the award. The plaintiff first argues that since Palmieri did not appeal the judgment, it is conclusive as to him. In Gino's Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 141-42, 475 A.2d 305 (1984), however, the Supreme Court noted that a party who fails to appeal a judgment may nonetheless benefit from an appellate decision rendered in the context of an appeal brought by another party in the same case. The plaintiff argues that the award of counsel fees against the other nonspouse defendant, Cifarelli, was not based on § 46b-62, but rather on "the trial court's common law powers to award attorney's fees as an element of punitive damages." In support of this argument, the plaintiff refers to her prayer for relief in the second amended complaint, which included a request for punitive damages against all defendants. Generally, attorney's fees may not be recovered, either as costs or damages, absent contractual or statutory authorization. O'Leary v. Industrial Park Corp., 211 Conn. 648, 651, 560 A.2d 968 (1989); Plikus v. Plikus, 26 Conn. App. 174, 179, 599 A.2d 392 (1991). Attorney's fees may be awarded, however, as a component of punitive damages. O'Leary v. Industrial Park Corp., supra, 651; Plikus v. Plikus, supra, 179. "To furnish a basis for recovery of such damages, the pleadings must allege and the evidence must show wanton or wilful malicious misconduct, and the language contained in the pleadings must be sufficiently explicit to inform the court and opposing counsel that such damages are being sought." Markey v. Santangelo, 195 Conn. 76, 77, 485 A.2d 1305 (1985). Punitive damages may be awarded upon a showing of fraud. O'Leary v. Industrial Park Corp., supra, 651; Plikus v. Plikus, supra, 180. In the present case, the referee did not make any findings with regard to wanton or wilful malicious misconduct. He did find, however, that the properties at issue had been fraudulently conveyed; accordingly, he found that the case was controlled by General Statutes § 52-552, governing fraudulent conveyances. Therefore, although there was a finding of fraud, which might justify an award of punitive damages, the fraud in this case falls within the parameters of § 52-552, which does not provide for an award of attorney's fees. Derderian v. Derderian, 3 Conn. App. 522, 529, 490 A.2d 1008, cert. denied, 196 Conn. 810, 811, 495 A.2d 279 (1985). We therefore vacate that portion of the judgment requiring Cifarelli and Palmieri to pay the plaintiff's attorney's fees. The defendants next argue, pursuant to General Statutes § 46b-82, that the trial court failed to consider the financial ability of the named defendant to pay the fees. We do not agree. The award of counsel fees was made after a full trial on the merits. The court specifically stated that the award was issued "in order not to undermine the property awards to her, and also because of her physical condition that necessitates her wearing a full body cast and being unable to work." The court further noted that the plaintiff has no significant employment skills. On the basis of the foregoing, we cannot say that the award of attorney's fees to the plaintiff was an abuse of discretion. Tessitore v. Tessitore, supra, 31 Conn. App. 44; Passamano v. Passamano, 28 Conn. App. 854, 860-61, 612 A.2d 141, rev'd on other grounds, 228 Conn. 85, 634 A.2d 891 (1993). The final argument on appeal is that the trial court failed to substantiate on the record the plaintiff's attorney's fee request. No motion for articulation was filed, however, requesting that the trial court articulate on the record the basis on which it ordered the payment of counsel fees. See Practice Book § 4051. Without some evidence to the contrary, we will not presume that the trial court improperly applied the law. See Passamano v. Passamano, supra, 28 Conn. App. 861. The judgment is reversed in part and the case is remanded with direction to render judgment as on file except as modified to eliminate the ordered payment of attorney's fees by the defendants Susan Cifarelli and Pasquale Palmieri. In this opinion the other judges concurred. The defendants named in this action were Frank Farrell, Susan Cifarelli, the East Pearl Development Company, Leon Crockett and Pasquale Palmieri. Crockett did not appear in the action and was not present at trial. Palmieri was not present at trial and has not appealed the trial court's ruling. As used in this opinion, the word defendants refers to Frank Farrell, Cifarelli and the East Pearl Development Company. With regard to 77 East Pearl Street and 177-179 Ferry Street, the referee's memorandum of decision further states: "Frank Farrell originally purchased the East Pearl Street and Ferry Street properties, fixed them up himself and 'conveyed' them to Crockett and Palmieri for minimal considerations. "After holding the properties for a short period of time Crockett and Palmieri each gave them to Cifarelli, the live in girl friend of the defendant Farrell. "During these brief periods, Susan Cifarelli collected the rents. After she was given the properties, either she or the defendant Farrell continued to collect the rents. "Mr. Farrell testified that he tells people he owns the properties because it makes him feel good . he says he owns the properties, 'because it makes it easier to collect the rents for Susan.' " General Statutes § 46b-66a (a) provides: "At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may order the husband or wife to convey title to real property to the other party or to a third person." General Statutes § 46b-81 (a) provides: "At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect." Palmieri has not appealed this ruling. See footnote 1. General Statutes § 46b-81 (c) provides in relevant part: "In fixing the nature and value of the property, if any, to be assigned, the court. . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates." The judgment provides: "The court further orders the defendants, Frank Farrell, Susan Cifarelli and Pasquale Palmieri, jointly and severally to pay the plaintiff's attorney fees to her counsel Edward Dolan in the amount of $30,000 within ninety days from the date of this judgment." General Statutes § 52-552 was repealed by Public Acts 1991, No. 91-297, and we have adopted General Statutes § 52-552a, the Uniform Fraudulent Transfer Act. Prior to that adoption, General Statutes § 52-552 governed fraudulent conveyances. Because § 52-552 was in effect when the disputed transfers took place, we must consider this action under that statute. Tyler v. Schnabel, 34 Conn. App. 216, 220-21, 641 A.2d 388 (1994). Prior to its repeal in 1991, § 52-552 provided: "All fraudulent conveyances, suits, judgments, executions or contracts, made or contrived with intent to avoid any debt or duty belonging to others, shall, notwithstanding any pretended consideration therefor, be void as against those persons only, their heirs, executors, administrators or assigns, to whom such debt or duty belongs."

The defendant's petition for certification for appeal from the Appellate Court, 35 Conn. App. 541 (AC 13074), is denied.

Dupont, C. J. The plaintiff appeals from a decision of the compensation review division affirming a January 5, 1990 finding and award by the workers' compensation commissioner. We affirm the decision of the compensation review division on all issues except the failure to award interest on the medical bills for which payment was ordered by the commissioner. On September 15,1979, the plaintiff and the defendant employer had a contract of employment. Their employment relationship was subject to the Connecticut Workers' Compensation Act, as amended. General Statutes § 31-275 through 31-355a. The defendant employer insured its full compensation liability with the defendant insurer, Aetna Life and Casualty Company. On September 15, 1979, the plaintiff sustained an accidental injury to her left, nonmaster forearm, which injury arose out of and in the course of her employment. Following the accident, the plaintiff received workers' compensation payments until approximately sometime in December, 1982, at which time the payments were stopped by the defendants. The cessation of the workers' compensation payments in 1982 prompted formal hearings and argument before the commissioner that concluded in 1987 with a finding and award dated May 11, 1987. The central focus of those hearings and the 1987 decision was the interplay between the plaintiff's deteriorating mental status brought about by the 1979 injury and certain unrelated surgery performed on her in February, 1982. The plaintiff argued that her psychiatric disability was a direct and proximate result of her September, 1979 compensable injury. The defendants contended that they are not obligated to pay for any psychiatric treatment or total disability benefits after February, 1982, due to the intervening and unrelated surgery. In his 1987 finding and award, the commissioner concluded that the plaintiff is totally disabled due to posttraumatic stress disorder. The commissioner further found that, although the plaintiff developed a conversion hysteria disorder as a result of her 1979 compensable injury, this condition did not render her totally disabled. Rather, the commissioner concluded, "the basis for the claimant's total disability [the posttraumatic stress disorder] is the cervical surgery [an anterior cervical fusion at C4-C5 and excision of the C4-C5 disc] performed upon her by Dr. [Allen] Chamberlin on February 24, 1982," which surgery "was unrelated to her September 15,1979 left arm injury, and that such surgery was unjustified insofar as it may relate to said compensable left arm injury." The 1987 finding and award made the defendants liable for all psychiatric care for the plaintiff made necessary as a result of the conversion hysteria disorder, "the full extent of which is limited to such care as will restore her to the point where her mental status was prior to her cervical surgery on February 24, 1982." Accordingly, the finding and award did not provide for any additional temporary total disability benefits. The commissioner made no findings on the issue of the plaintiff's eligibility for permanent partial (specific) benefits for the injury to her left arm, leaving the matter undecided. The commissioner also left undecided the issues of liability for outstanding medical bills, interest and attorney's fees, and the acceptance or denial of Form 36. The plaintiff attempted to obtain review of the commissioner's May 1987 finding and award. Her appeal to the compensation review division, however, was determined to be untimely. The review division did review the commissioner's denial of her timely filed request for modification and reopening, concluding that there was no basis to overrule the commissioner's action. The review division also granted the plaintiff's motion to compel the defendants to comply with that portion of the commissioner's award that requires the defendants to provide psychiatric care to the plaintiff sufficient to restore her to her mental status before the 1982 cervical surgery. See Imbrogno v. Stamford Hospital, 5 Conn. Workers' Comp. Rev. Op. 99 (1988). No further appeal was taken. Further formal hearings and argument before the commissioner took place in 1989. On January 5,1990, the commissioner issued a second finding and award which addressed the issue of the defendants' liability for the payment of various outstanding bills pertaining to medical and psychiatric treatment provided to the plaintiff by a number of medical providers between 1979 and 1988. The commissioner ordered the defendants to pay certain bills that were not disputed by them and to pay the undisputed portion of certain other bills. For the most part these bills were incurred prior to February 24,1982, with the exception of bills for ongoing psychiatric treatment. With regard to those bills that were totally contested by the defendants, the commissioner concluded that "the claimant has not sustained her burden of proof in showing that such bills were by authorized medical providers and/or being reasonable and necessary," and denied liability. The commissioner further ordered that the defendants pay a reasonable attorney's fee of $1000 to the plaintiff's counsel for their undue delay in the payment of the undisputed bills for which payment was ordered. No interest was awarded to the plaintiff arising out of the defendants' undue delay in the payment of the bills. The plaintiff appealed the 1990 finding and award to the compensation review division. On August 2, 1991, the review division concluded that the commissioner's factual conclusions regarding the disputed claims for payment of medical expenses were reasonable. The review division also concluded that the amount of attorney's fees awarded by the commissioner was a proper exercise of discretion and, therefore, affirmed the January 5, 1990 finding and award. See Imbrogno v. Stamford Hospital, 9 Conn. Workers' Comp. Rev. Op. 174 (1991). This appeal followed. On appeal, the plaintiff contends that the commissioner and the compensation review division did not properly analyze the underlying facts and the prior decisions in the case. She argues that she is entitled to disability payments and full payment for treatment for both the physical and psychiatric injuries. Specifically, she claims that (1) temporary total disability benefits should be paid by the defendants subsequent to the December, 1982 cutoff date, with permanent awards to follow when shown to be due, (2) bills for all medical treatment (except those for the unauthorized cervical fusion of February 24,1982) should be paid by the defendants, (3) attorney's fees for all work in this case by plaintiff's counsel should be paid by the defendants, and (4) interest should be paid on all of the foregoing. Our standard of review in workers' compensation appeals is well settled. "The commissioner has the power and duty to determine the facts and his conclusions must stand unless incorrectly drawn from the subordinate facts, illegal or unreasonable. . . . The compensation review division must review the appeal on the record and must not retry facts." (Citations omitted.) Hicks v. Department of Administrative Services, 21 Conn. App. 464, 466, 573 A.2d 770, cert. denied, 216 Conn. 804, 577 A.2d 716 (1990). Affording the plaintiff's claims the appropriate standard of review, we conclude that the compensation review division properly affirmed the determination of the commissioner on all issues except the failure to award interest on the medical bills for which payment was ordered by the commissioner. Temporary Total Benefits Although the issue of temporary total disability benefits is not discussed in the commissioner's 1990 finding and award, the commissioner addressed the subject of the claim for temporary total benefits during the course of the formal hearings. He concluded that further contest of that issue by the plaintiff was precluded by his 1987 finding and award. See footnote 2, supra. We agree that the commissioner's 1987 decision, which became final in 1988, precluded further contest of the issue of temporary total benefits in the subsequent proceeding that is the basis of this appeal. "The adjudications and awards of compensation boards or commissions, as well as the judgments of courts, in proceedings for the recovery of compensation, are generally held to be conclusive upon the parties and their privies, as to the matters and issues involved or justiciable therein, so as to preclude, under the doctrine of res judicata, the relitigation thereof in subsequent proceedings." 82 Am. Jur. 2d, Workmen's Compensation § 583, p. 304. In 1987, the commissioner determined that the plaintiffs disability was psychiatric in nature and was caused by the cervical surgery performed upon her on February 24,1982, which surgery was unrelated to her 1979 compensable injury. Consequently, temporary total disability benefits were denied on the basis of an intervening event, unrelated to the compensable injury, which broke the chain of causation linked to the original, compensable injury. See Dehron v. Clark, 122 Conn. 592, 191 A. 526 (1937); Lemieux v. Highland Dairy Co., Inc., 121 Conn. 483, 185 A. 433 (1936); J. Asselin, Connecticut Workers' Compensation Practice Manual (1985), p. 45; 1 A. Larson, Law of Workmen's Compensation (1985) § 13.11 (a). The plaintiff attempts to avoid the preclusive effect of the prior determination by arguing that, when the review division affirmed the 1987 decision of the commissioner in 1988, there remained several unresolved issues in the case, namely, her entitlement to specific benefits and her entitlement to payment of outstanding medical bills. In fact, in its 1988 opinion, the review division specifically noted that the commissioner "left undecided the other issues, i.e. permanent partial disability, attorney's fees and interest due to unreasonable contest, and acceptance or denial of Form 36." The claimant asserts that because these issues remained to be decided, the denial of temporary benefits was not final for purposes of appeal. The plaintiffs appeal to the compensation review division from the 1987 decision of the commissioner, and the review division's decision in 1988 pertained to the commissioner's decision that concluded that she was not entitled to ongoing temporary total disability benefits. Any further proceedings after the 1988 decision of the compensation review division would not alter the prior determination that the plaintiff's total psychiatric disability was causally related to a noncompensable event and that she was not entitled to temporary total disability benefits after February, 1982. Unlike in Guinan v. Direct Marketing Assn., Inc., 22 Conn. App. 515, 578 A.2d 129 (1990), relied on by the plaintiff, the compensation review division did not remand the case to the commissioner for further proceedings. Also, the issues involved in the additional proceedings before the commissioner in 1989 and the appeal therefrom to the review division in 1990 were conceptually distinct from those involved in the initial appeal. This case is also unlike Pokorny v. Getta's Garage, 219 Conn. 439, 594 A.2d 446 (1991). There, a prior decision of the compensation review division upholding a workers' compensation commissioner was not deemed to be a final judgment because additional hearings on the issue, which was the subject of the later appeal, were contemplated by the commissioner's original determination. Here, the upholding by the compensation review division of the denial by the commissioner of temporary benefits was final for purposes of appeal because no further hearings on that subject were envisaged. Accordingly, the plaintiffs failure to appeal from the 1988 decision of the compensation review division pursuant to General Statutes § 31-301b or to reserve her right to appeal from that decision pursuant to Practice Book § 4002 precludes her from now challenging the basis for the 1988 decision. New Haven v. New Haven Police Union Local 530, 210 Conn. 597, 606-607, 557 A.2d 506 (1989). "Any decision of the compensation review division, in the absence of an appeal therefrom, shall become final after a period of twenty days has expired from the issuance of notice of the rendition of judgment or decision." General Statutes § 31-301a. Because the issue of the plaintiffs entitlement to temporary total disability benefits was finally and fully resolved in the prior proceedings in 1988, further contest of the issue was precluded in the subsequent proceedings in 1989 and 1990 that are the subject of this appeal. The compensation review division, therefore, properly affirmed the commissioner's refusal to address the issue of the claim for temporary total benefits. Outstanding Medical Bills, Attorney's Fees and Interest The plaintiff next argues that the compensation review division's review of the commissioner's decision regarding payment of medical bills, attorney's fees and interest was fundamentally flawed in that it rested on a misunderstanding of the 1987 findings and award. The review division's 1991 decision which is the subject of this appeal contains the following background discussion: "The May 11,1987 ruling concluded claimant developed a conversion hysteria due to her left arm injury, and she was granted payment for treatment of that condition until February 24, 1982. On that date, cervical surgery unrelated to the arm injury occurred. This caused worsening of claimant's medical state. The May 11,1987 decision did not order payment for treatment of that condition after February 24, 1982." (Emphasis added.) The plaintiff argues that this last sentence refers to her psychiatric condition and is directly contrary to the conclusion reached by the commissioner in 1987. We conclude that the challenged sentence is ambiguous. The "condition" referred to therein could be either the further deteriorated and disabling psychiatric condition that resulted from the cervical surgery or the earlier conversion hysteria that was found to be causally related to the compensable injury. Only the latter condition was compensable. Because a public official is presumed to have performed his duty properly unless the contrary appears; Cahill v. Board of Education, 198 Conn. 229, 242, 502 A.2d 410 (1985); Miller v. Miller, 22 Conn. App. 310, 314, 577 A.2d 297 (1990); we will interpret the sentence to exclude payment for treatment of only the former condition, and not the latter condition as is suggested by the plaintiff. Furthermore, the plaintiff has failed to show that the challenged sentence affected the compensation review division's review of the commissioner's decision or otherwise requires that we remand the matter to the review division for further consideration. See Boulay v. Waterbury, 27 Conn. App. 483, 486-87, 607 A.2d 450 (1992). The commissioner denied liability for various medical bills not because of the dates of treatment but because the plaintiff had not shown that the treatment involved was provided by authorized medical providers and was reasonable and necessary in light of her compensable injuries. This is a fact bound determination that we will not disturb on appeal. Hicks v. Department of Administrative Services, supra. The commissioner further limited the recovery of attorney's fees to those issues on which the plaintiff had prevailed. It is within the commissioner's discretion whether to award a fee and how much to award. See Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 179-80 n.8, 355 A.2d 227 (1974); Menzies v. Fisher, 165 Conn. 338, 349, 334 A.2d 452 (1973). With regard to the issues of medical bills and attorney's fees, the plaintiff does little more than attack the commissioner's findings of fact. The compensation review division properly reviewed the appeal on the record and did not retry the facts. Hicks v. Department of Administrative Services, supra. Our review of the record indicates that the review division properly con- eluded that the commissioner made a reasonable finding and award regarding the medical bills and the attorney's fees based on the evidence presented. The plaintiff's claim to interest on the medical bills that the commissioner ordered the defendants to pay presents a different matter, however. The commissioner determined that there had been an undue delay by the defendants in the payment of the undisputed bills and in the payments of the undisputed portions of other bills for which they were made liable. This was the basis of the commissioner's discretionary award of attorney's fees pursuant to General Statutes § 31-300. The commissioner failed to award interest on these amounts also after making a finding of delay due to the fault or neglect of the defendants sufficient to justify an award of attorney's fees. Cf. Pokorny v. Getta's Garage, 22 Conn. App. 539, 542-44, 579 A.2d 98 (1990), rev'd on other grounds, 219 Conn. 439, 594 A.2d 446 (1991). Because the commissioner found that there was a delay due to the fault or neglect of the defendants that warranted a discretionary award of attorney's fees, an award of interest should also have been made. We read the words of § 31-300, "may include in his award interest . . and a reasonable attorney's fee," to allow a discretionary award of both interest and attorney's fees or neither, but not to allow an award of one and not the other. Accordingly, we must remand the case for a further award of interest pursuant to § 31-300, on those medical bills for which the commissioner found payment by the defendants to have been unduly delayed. Permanent Partial (Specific) Benefits Both parties correctly recognize that the commissioner has yet to make any findings and award with respect to the plaintiff's entitlement to permanent partial benefits, pursuant to General Statutes § 31-308, for the compensable injury to the plaintiffs left arm. Decision on that issue was specifically reserved in the 1987 findings and award. The subject was not addressed in the 1990 findings and award. Consequently, final administrative determination of claimant's entitlement to these benefits must await further proceedings before the workers' compensation commissioner. The decision is reversed only as to the failure to award interest and the case is remanded to the compensation review division with direction to calculate the appropriate amount of interest due the plaintiff on the medical bills for which the commissioner found payment by the defendants to have been unduly delayed. In this opinion the other judges concurred. See footnote 4, infra. In addition to the matter of outstanding medical bills and attorney's fees, the workers' compensation commissioner addressed other issues orally during the course of the 1989 formal hearings. At the hearings, the workers' compensation commissioner noted that his 1987 finding and award had determined that "[t]he Aetna is not liable for the total disability. They are liable, rather, for the payment of reasonable psychiatric bills to, in effect, take care of [the plaintiff] the way she was prior to the [1982] surgery." The commissioner determined that his prior decision had resolved the issue of the plaintiff's eligibility for temporary total disability benefits based on her psychological condition, precluding further contest of the issue. The commissioner also noted that the issue of any specific or permanent disability award for the injury to the plaintiff's left arm was not yet ripe for review as the plaintiff had not yet responded to the defendants' tender of a voluntary agreement for a 100 percent injury to the arm with a December, 1982 date of maximum medical improvement because the plaintiff had believed that the issue of temporary total benefits was still part of the case. The relevant portions of the May 11, 1987 finding and award are as follows: "6. The claimant is presently totally disabled due to Post Traumatic Stress Disorder, however both the claimant and the respondents attribute different reasons for her disability. "7. The claimant contends that her current psychiatric disability is a direct proximate cause of her compensable injury of September 15, 1979, that she has not yet reached maximum medical improvement, that she has outstanding medical bills in excess of $40,000.00 and that she will require ongoing future medical and psychiatric care as a result of said accident; and that she is entitled to all payments retroactive to the time they ceased being paid in late 1982. "8. The respondents claim that the claimant injured her left arm in 1979, and they paid benefits to the claimant in connection with said injury; that certain treatment rendered to the claimant was unrelated to the left arm injury of September 15, 1979, which treatment includes, inter alia, cervical surgery; that they are not responsible for any psychiatric treatment or total disability benefits. "9. Testimony offered by the claimant's daughter and niece indicates that the claimant's mental status changed significantly following the accident. "10. It is found that the claimant developed a conversion hysteria as a result of said accident, but she was still able to function. "11. As a result of the cervical surgery, the claimant's personality changed further, she continued to deteriorate, become sadder, do less work around the house than prior to said surgery, and ultimately was diagnosed as suffering from a Post Traumatic Stress Disorder by Dr. J.A. Camacho-Pantoja, a psychiatrist. "12. It is found that the basis for the claimant's total disability is the cervical surgery performed upon her by Dr. Chamberlin on February 24, 1982. "13. It is further found that the cervical surgery performed upon the claimant was unrelated to her September 15,1979 left arm injury, and that such surgery was unjustified insofar as it may relate to said compensable left arm injury." Form 36 is a notice to the compensation commissioner and the claimant of the intention of the employer and its insurer to discontinue compensation payments. The filing of this notice and its approval by the commissioner are required by statute in order properly to discontinue payments. General Statutes § 31-296, 31-296a, 31-300. At the subsequent proceedings, which are the subject of this appeal, the defendants argued that because they had filed a Form 36 before the com missioner's initial decision and the commissioner concluded that their liability for temporary total disability benefits had ceased, any Form 36 issue had become moot. The plaintiff did not dispute this, and the commissioner agreed that his prior decision had resolved the issue of the approval of the Form 36. General Statutes § 31-30 lb provides: "Any party aggrieved by the decision of the compensation review division upon any question or questions of law arising in the proceedings may appeal the decision of the compensation review division to the appellate court." Practice Book § 4002 (a) provides in pertinent part: "A judgment disposing of certain of the issues between the parties . in such a manner as to be final but not terminating the litigation . . . may be treated as a final judgment for the purpose of an appeal by the party or parties against whom the judgment is rendered, notwithstanding that the cause remains undisposed of on other issues . but the party or parties may, at their option, reserve their appeal until the final judgment is rendered which disposes of the cause for all purposes . . . provided, in such a case, that notice of such reserving of appeal shall be filed in the trial court . . . within twenty days after issuance of notice of the rendition of the judgment disposing of part of the issues." In paragraph fourteen of the 1987 findings and award, the commissioner "found that [the claimant's] conversion hysteria is a condition for which Workers' Compensation benefits may be available, and although not specifically addressed in this matter, there is sufficient evidence for me to conclude that the respondents are liable to provide psychiatric care to the claimant, the full extent of which is limited to such care as will restore her to the point where her mental status was prior to her cervical surgery on February 24, 1982." In its 1988 decision, the compensation review division made specific mention of paragraph fourteen and required the defendants "to provide psychiatric care sufficient to restore claimant to her mental status before the 1982 cervical surgery." General Statutes § 31-300 provides in pertinent part: "In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in his award interest at the rate prescribed in section 37-3a and a reasonable attorney's fee in the case of undue delay in adjustments of compensation and may include in his award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney's fee."

The plaintiff's petition for certification for appeal from the Appellate Court, 34 Conn. App. 708 (AC 12341), is denied. Decided September 14, 1994 Leon M. Rosenblatt, in support of the petition. Richard A. Mills, Jr., and Sheila Huddleston, in opposition.

The defendant's petition for certification for appeal from the Appellate Court (AC 13508) is denied.

The defendant's petition for certification for appeal from the Appellate Court, 35 Conn. App. 239 (AC 12056), is denied.

Per Curiam. The judgment is affirmed.

Per Curiam. The judgment is affirmed.

Per Curiam. The judgment is affirmed.

Freedman, J. The petitioner, John McIver, was found guilty, after a jury trial, of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), sexual assault in the first degree in violation of General Statutes § 53a-70 (a), and larceny in the sixth degree in violation of General Statutes § 53a-125b. The trial court sentenced the petitioner to a total effective term of twenty years imprisonment. The facts underlying the petitioner's conviction of these charges are fully set forth in State v. McIver, 201 Conn. 559, 518 A.2d 1386 (1986), where, on direct appeal, our Supreme Court upheld the petitioner's conviction. While his direct appeal was pending, the petitioner, acting pro se at the time, filed a petition for a writ of habeas corpus in the Superior Court for the judicial dis trict of Tolland. The consolidated amended petition, filed in the habeas court in February, 1990, alleged prosecutorial misconduct, improper jury instructions and ineffective assistance of appellate counsel. After a full hearing on the merits, the habeas court, Dunn, J., denied the petitioner's application for relief. The habeas court then granted the petitioner certification to file an appeal in this court. General Statutes § 52-470 (b). We affirm the judgment of the habeas court. The petitioner claims that the habeas court improperly (1) concluded that he was not deprived of a fundamentally fair trial by the cumulative effect of prosecutorial misconduct in combination with insufficient and erroneous trial court instructions on inferences, circumstantial evidence, negative evidence, proof beyond a reasonable doubt and the credibility of the victim, (2) concluded that the petitioner's right to effective assistance of counsel was not violated where the petitioner's appellate counsel failed to raise on appeal the issue of the trial court's erroneous charge on proof beyond a reasonable doubt, (3) concluded that there was a necessary or reasonable continuance of the trial that tolled the 120 day speedy trial statute, and (4) denied the petitioner's motion to open the judgment. The petitioner's first claim was not raised at trial or on direct appeal and therefore must fail. With respect to claims raised for the first time in a habeas corpus petition, our Supreme Court has stated: 'We are persuaded that habeas review of constitutional claims never raised in the trial court, in violation of our rules of practice, would thrust too great a burden on our criminal justice system." Johnson v. Commissioner, 218 Conn. 403, 417, 589 A.2d 1214 (1991). In Johnson v. Commissioner, supra, therefore, the court "adopted the federal 'cause and prejudice' standard from Wainwright [v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977)] for habeas review of constitutional claims not raised at trial." Giannotti v. Warden, 26 Conn. App. 125, 129, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992). "The Wainwright standard requires that the petitioner show good cause for the failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation. . . . The petitioner must establish both elements to obtain relief. . . ." (Citations omitted.) Id. When the habeas court fails to make a finding on the record regarding cause and prejudice, "Giannotti permits this court to review the record in an effort to determine whether any evidence of cause and prejudice has been provided by a petitioner. Where no evidence has been provided, this court can independently conclude that the petitioner has failed to meet the cause and prejudice test. Where, however, there has been evidence presented on the issues of cause and prejudice and the habeas court does not make a finding on the record that the petitioner has either met or failed to meet his burden of establishing cause and prejudice, we will not review the inadequately preserved constitutional claim on the merits. Rather, we will remand the case to the habeas court for it to determine whether the petitioner has satisfied his burden of establishing cause and prejudice." Daniels v. Warden, 28 Conn. App. 64, 72, 609 A.2d 1052 (1992). A review of the habeas record reveals that the petitioner failed to demonstrate any reason why the prosecutor's remarks and the jury instructions were not previously challenged, and that he failed to demonstrate what prejudice these alleged improprieties caused him. "We see no reason why the petitioner could not have advanced this constitutional claim at the time of appeal." Giannotti v. Warden, supra, 128. We conclude, therefore, that even though the habeas court did not address the issue of cause and prejudice, the record is clear that the petitioner failed to provide that court with evidence of either cause for his failure to raise these issues at trial or any prejudice resulting therefrom. Thus, he is not entitled to review of these claims on the merits. See Daniels v. Warden, supra, 73. The petitioner next claims that the habeas court improperly concluded that the petitioner was not deprived of his right to the effective assistance of appellate counsel. Specifically, he claims that the habeas court incorrectly concluded that his appellate counsel's failure to challenge the trial court's instructions on reasonable doubt, namely, that "if you find the evidence in equipoise or equal, the state has not sustained its burden," did not constitute ineffective assistance of counsel. The petitioner took no exception to this charge at trial. At the habeas trial, the petitioner's appellate counsel on direct appeal testified that he did not challenge the jury instructions on appeal because he believed "taking the charge as a whole that it was a fair and correct statement of the law as of December, 1985, and October, 1986, and not subject to reversal on appeal." "The right to effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States constitution . . . ." Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985). "When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "There are two components of a claim of ineffective assistance of counsel. 'First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that thq deficient performance prejudiced the defense.' [Id., 687]." Johnson v. Commissioner, supra, 424. This standard also applies to claims, such as the one here, of ineffective assistance of appellate counsel. Valeriano v. Bronson, 209 Conn. 75, 84, 546 A.2d 1380 (1988). The petitioner relies on State v. Smith, 183 Conn. 17, 438 A.2d 1165 (1981), in support of his claim that his appellate counsel's performance was deficient. In Smith, our Supreme Court rejected the trial court's instruction that provided in pertinent part: " 'Now, if you find that the state has presented evidence so that the scale tips in favor of the state, you still must be convinced that the defendant is guilty beyond a reasonable doubt. I am sorry that I cannot give you graphic or pictorial description as to what is required for the state to prove their case beyond a reasonable doubt by indicating on the scale whether it would be an inch or a foot or a yard or a mile. I can't do that, so please bear in mind that if the evidence is in equipoise or equal, the state has not sustained its burden, and in that case, you would find the defendant not guilty. For the state to prevail, you must find the scales tipped beyond a reasonable doubt.' " Id., 26-27. Our Supreme Court reversed the defendant's conviction, concluding that "[u]nder the charge, the jury could have found the defendant guilty if they believed beyond a reasonable doubt that the 'scale' had been tipped in favor of con viction. . . . Since the jury could easily have been misled by this analogy to the tipping of a scale, and could have found the defendant guilty even if there was a reasonable doubt whether he had in fact committed the crimes, we find error." (Citations omitted.) Id., 28-29. It is clear that the court's reversal in Smith was based on the tipping of the scale analogy. The petitioner claims that his appellate counsel's failure to challenge the equipoise instruction, on the basis of Smith, constitutes ineffective assistance of appellate counsel. In the petitioner's trial, however, the trial court did not include the tipping of the scale analogy in its instructions. State v. Smith, supra, therefore, is inapposite to the present matter. Rather, our analysis and disposition of this issue is guided by the well established principles for reviewing jury instructions. "[A] court reviewing a jury charge must review the charge as a whole and not analyze small portions in isolation. . . . The ultimate test of a court's instructions is whether, taken as a whole, they fairly and adequately present the case to a jury in such a way that injustice is not done to either party under the established rules of law." (Citations omitted; internal quotation marks omitted.) Magnotti v. Meachum, 22 Conn. App. 669, 682, 579 A.2d 553 (1990). With this standard in mind, we cannot say that the conclusion of the petitioner's appellate counsel was unreasonable. The trial court accurately described the meaning of reasonable doubt at length in the petitioner's trial. The charge as a whole made clear to the jury the meaning of reasonable doubt. The portion of the instruction challenged by the petitioner is similar to the two inference instruction, which our Supreme Court has approved when the jury has otherwise been properly instructed on the state's burden of proof. See State v. Dyson, 217 Conn. 498, 504, 586 A.2d 610 (1991). Furthermore, the petitioner's appellate counsel chose several other substantive claims to raise on appeal. "While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. ' "A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions." ' Valeriano v. Bronson, supra, 89 Magnotti v. Meachum, supra, 682-88. The petitioner's appel late counsel selected for review those issues that he believed were the strongest and most likely to result in reversal. This decision fell "within the range of competence displayed by lawyers with ordinary training and skill . . . ." (Citations omitted; internal quotation marks omitted.) Levine v. Manson, supra. The petitioner also claims that he was deprived of the effective assistance of counsel from both his appellate counsel and trial counsel because they failed to raise and press a statutory speedy trial claim. The habeas court disposed of this claim, however, by concluding that there was a necessary and reasonable continuance of the petitioner's initial trial, and that such continuance tolled the petitioner's right to a trial within 120 days from his request for a speedy trial pursuant to General Statutes § 54-82c. The petitioner claims that this conclusion by the habeas court was improper. At the outset, we must set forth our standard of review. "Although the underlying historical facts found by the habeas court may not be disturbed unless they were clearly erroneous, whether those facts constituted a violation of the petitioner's rights under the sixth amendment 'is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case.' Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). As such, that question requires plenary review by this court unfettered by the 'clearly erroneous' standard. Id." Phillips v. Warden, 220 Conn. 112, 131, 595 A.2d 1356 (1991). Additional facts are relevant for a proper disposition of this issue. The crime underlying the petitioner's conviction in this case derived from an incident that occurred on December 30,1983. At that time, the petitioner was on parole from a previous conviction. When he was arrested for the December 30, 1983 incident, therefore, he was returned to jail to complete his sentence for the previous crime. On March 19, 1984, the petitioner, pursuant to § 54-82c, properly requested a speedy trial as a sentenced prisoner. On April 5,1984, the petitioner's attorney filed a separate motion for a speedy trial on constitutional grounds, which the trial court subsequently denied. On July 3,1984, the state moved for a continuance of the petitioner's trial. The trial court denied the motion. On July 17,1984, the parties appeared before the court. At that time, both the state and the petitioner represented to the court that each side was prepared to commence trial. The court had pending before it, however, various motions involving this matter, including a motion by the petitioner to dismiss the charges because of an allegedly illegal arrest. The petitioner and the state agreed that the court's disposition of this motion may have been dispositive of the entire prosecution and, therefore, the state without objection from the petitioner, requested "the court to declare the case on trial at this point so that there is no question that the statute has been complied with." The trial court granted the state's request, declared the case on trial, and then proceeded to consider the petitioner's various pretrial motions. Jury selection actually commenced on July 19,1984, and the jury panel was finally sworn in on July 26, 1984. On direct appeal from his conviction, the petitioner raised the issue of the state's failure to commence his trial within 120 days of his request, as required by § 54-82c. At oral argument, however, the petitioner abandoned this issue because the state convinced the petitioner's appellate counsel that the 120 days had not expired because his motion for a speedy trial actually was filed on April 5, 1984. Apparently, the state did not see the March 19, 1984 request in the trial court file, and it convinced the petitioner that the only speedy trial motion he made was filed on April 5,1984, a date that effectively negated the petitioner's claim under § 54-82c. Sometime after the conclusion of his direct appeal, the petitioner realized the mistake made by the state and accepted by his appellate counsel, and he raised this issue in his habeas petition. Section 54-82c requires that if a defendant already serving a prison term files a speedy trial request with respect to other charges, "he shall be brought to trial within 120 days . . . ." The purpose of § 54-82c and 54-82d is to "allow a prisoner who was committed to jail to ask that he be tried within 120 days on any information or indictment pending against him." Remarks of Senator John H. Filer, 7 S. Proc., Pt. 6,1957 Sess., p. 3712, on H.B. 683. Section 54-82c, however, permits the trial court to grant "any necessary or reasonable continuance" for good cause shown in open court. It is undisputed that the last day for compliance with § 54-82c was July 17,1984. The habeas court, however, concluded that because both the state and the petitioner's attorney agreed to proceed on the motions first, despite their knowledge that July 17 was the 120th day, and because of their acquiescence in the trial court's declaration that the matter was on trial, there was a necessary and reasonable continuance for good cause shown in open court pursuant to § 54-82c. We agree. Although the mere declaration by a trial judge that a case is on trial does not a trial make, it is clear from the record that the petitioner and his trial attorney knew that July 17 was the 120th day, and that they had the right to pursue their claim for dismissal under § 54-82c and 54-82d. It is also clear from the record and the testimony of witnesses at the habeas trial that the state was ready, willing and able to commence trial on that date, and that the petitioner's attorney opted to forego his speedy trial claim because (1) he knew that if he raised it, he would not prevail because the court simply would have commenced trial by instituting jury selection, and (2) he believed that he was going to prevail on his motion to dismiss because of an illegal arrest. Because the motion to dismiss based on the illegal arrest might have been dispositive without first going through the process of selecting a jury, both the state and the defendant agreed, in open court, to have a hearing and to obtain a ruling from the court on that motion before a trial actually started. The trial court's declaration that the matter was on trial, therefore, was the functional equivalent of the granting of a reasonable continuance for good cause shown in open court, even though the trial court did not use the talismanic word "continuance." See, e.g., State v. Velez, 17 Conn. App. 186, 190-91, 551 A.2d 421 (1988), cert. denied, 210 Conn. 810, 556 A.2d 610, cert. denied, 491 U.S. 906, 109 S. Ct. 3190, 105 L. Ed. 2d 698 (1989). We therefore find nothing improper with the conclusion of the habeas court, and because of this conclusion, neither the trial attorney nor the appellate counsel's failure to raise the speedy trial issue deprived the petitioner of effective assistance. Finally, the petitioner claims that the trial court improperly denied his motion to open the judgment. Testimony at the petitioner's habeas trial suggested that the petitioner was technically released from prison on his prior sentence on July 10,1984, because of good time credits that should have been credited to him. If that were true, the petitioner would not have any speedy trial claim under § 54-82c because he would then have been held after that date on a pretrial detainer. State v. Harris, 14 Conn. App. 244, 249-50, 540 A.2d 395 (1988). In its December 21, 1990 memorandum of decision, the habeas court, after concluding that there was a reasonable and necessary continuance, also stated: "Further, the petitioner was released from prison on July 10, 1984, so § 54-82c probably did not apply. He was held after that date on a (pretrial) detainer." On April 2,1991, the petitioner filed a motion to open the judgment. The substance of this motion was that the petitioner had discovered, through additional evidence, that the state had incorrectly calculated the good time credits to which the petitioner was entitled so that he was not, in fact, being held on a pretrial detainer as of July 17, 1984. The habeas court denied the motion to open because it concluded that even if the petitioner was correct, it made no difference to the court's opinion because the habeas court had also concluded that there was a necessary and reasonable continuance for good cause shown. "The decision to reopen the testimony rests within the sound discretion of the trial court. State v. Sanchez, 200 Conn. 721, 729-30, 513 A.2d 653 (1986)." Ostolaza v. Warden, 26 Conn. App. 758, 778, 603 A.2d 768 (1992). "The criteria for a court to open a judgment is analogous to the conditions needed for a petition for a new trial on grounds of newly discovered evidence. Shelton Sewer Authority v. DeFilippo, 2 Conn. App. 355, 361, 478 A.2d 623 (1984)." Buster v. Commissioner, 26 Conn. App. 48, 51, 596 A.2d 943 (1991). One of those criteria is that the "evidence . is likely to produce a different result." Buster v. Commissioner, supra, 51-52. Because of the habeas court's conclusion that there was a necessary and reasonable continuance for good cause shown, this new evidence, even if true, would not have produced a different result. We conclude, therefore, that the habeas court did not abuse its discretion in refusing to open the judgment. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 52-470 (b) provides: "No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or on behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies." Because the petitioner has couched his ineffective assistance claims entirely in sixth amendment terms and has provided no separate and independent analysis of our state constitutional provisions, we confine our discussion to Ms rights under the sixth and fourteenth amendments. Phillips v. Warden, 220 Conn. 112, 131 n.15, 595 A.2d 1356 (1991). The trial court, in its charge to the jury on the meaning of reasonable doubt, also instructed the jury as follows: "Now, the phrase reasonable doubt has no technical or unusual meaning. You can arrive at the real meaning of it by emphasizing the word, reasonable. A reasonable doubt is a doubt for which a valid reason can be assigned. It is a doubt which is something more than a guess or surmise. It is not a conjecture or a fanciful or capricious doubt. A reasonable doubt is not a doubt which is raised by someone simply for the sake of raising doubts. Nor is it a doubt suggested by the ingenuity of counsel or a juror which is not warranted by the evidence. A reasonable doubt, in other words, is a real doubt, an honest doubt, a doubt which has its foundation in the evidence or lack of evidence. It is such a doubt as in the serious affairs which concern you in every day life you would pay some heed to. Another way of defining it is this. A reasonable doubt is not a slight doubt. It is not a possible doubt. It is not a conjecture or a guess, nor does it arise from feelings of sympathy or pity for anyone who may be affected by your verdict. A reasonable doubt is one which is based on the evidence and flows from the' evidence or lack of evidence. It is a doubt which is based on reason. It is a doubt founded on reason as contrasted with purely speculative doubt. "Now, absolute certainty, of course, in the affairs of life is almost never attainable and the law does not require absolute certainty on the part of the jury before it returns a verdict of guilty. What the law does require, however, is that after hearing all the evidence if there is something in that evidence or lack of evidence which leaves in the minds of the jury as reasonable men and women a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and be acquitted. It necessarily follows as I have told you, that if any fact or element bears equally two ways, one towards innocent and the other towards guilt, that it must be given that direction which tends towards innocent. In other words, it is incumbent on the State to negative every supposition not in itself unreasonable or improbable with the innocence of the accused. If you can in fact reconcile all of the facts proved with any reasonable theory consonant with the innocence of the accused, then, of course, you cannot find him guilty." General Statutes § 54-82c provides: "(a) Whenever a person has entered upon a term of imprisonment in a correctional institution of this state and, during the continuance of the term of imprisonment, there is pending in this state any untried indictment or information against such prisoner, he shall be brought to trial within one hundred twenty days after he has caused to be delivered, to the state's attorney or assistant state's attorney of the judicial district or geographical area, in which the indictment or information is pending, and to the appropriate court, written notice of the place of his imprisonment and his request for final disposition to be made of the indictment or information. For good cause shown in open court, the prisoner or his counsel being present, the court may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the warden, community correctional center administrator or other official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner. "(b) The written notice and request for final disposition referred to in subsection (a) hereof shall be given or sent by the prisoner to the warden, community correctional center administrator or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested. "(c) The warden, community correctional center administrator or other official having custody of the prisoner shall promptly inform him in writing of the source and contents of any untried indictment or information against him concerning which the warden, administrator or other official has knowledge and of his right to make a request for final disposition thereof. "(d) Escape from custody by the prisoner subsequent to his execution of the request for final disposition referred to in subsection (a) hereof shall void the request."

O'Connell, J. The defendants appeal from the trial court's decision rendering summary judgment in the plaintiffs' favor on both the complaint and the defendants' counterclaim. The appeal arises from an alleged breach of a written contract for the construction and sale of a house. The defendants' first four claims are subsumed under the claim that the trial court improperly granted the plaintiffs' motion for summary judgment on the complaint because there were material factual issues to be determined. The defendants' fifth claim is that the trial court improperly granted summary judgment on the counterclaim because it was not before the court and because there were material factual issues to be determined. We reverse the judgment on the complaint and the counterclaim. The following facts are relevant to the appeal. The plaintiffs were prospective buyers of a building lot and house to be constructed by the defendants. The parties' original written contract specified a closing date of September 12, 1989. The plaintiffs paid a $16,000 deposit toward the purchase price of $190,000 with the balance to be paid at the closing. In July, 1989, in connection with the installation of the septic leaching fields, the defendants had the property resurveyed and discovered that the foundation extended several feet over the approved building line. The defendants attempted to remedy the problem by applying for a zoning variance. The application was denied in early September and the defendants were forced to reposition the foundation, thereby incurring a delay. Recognizing that the house would not be completed by September 12, the parties agreed to postpone the closing date to October 31, 1989. Thereafter, the defendants requested, and the plaintiffs granted, five further extensions of time for the defendants to perform the contract. Three of those extensions were granted after the plaintiffs had unilaterally notified the defendants that time was of the essence. The final agreed upon closing date was January 2, 1990, subject to the issuance of a certificate of occupancy and a final inspection by the plaintiffs' mortgage lender, which was to take place on December 29,1989. On the morning of December 29, the mortgage lender inspected the premises and notified the plaintiffs that the house was not sufficiently complete to allow a January 2,1990 closing. Later that day, the plaintiffs communicated to the defendants, both orally and in writing, that they were terminating the contract on the ground that the defendants had breached the contract by failing to complete the house in a timely manner. The plaintiffs further demanded the return of their $16,000 deposit. On January 4,1990, five days after the notification of termination and two days following the scheduled closing date, the town building inspector issued a certificate of occupancy for the house. The defendants ultimately sold the house to a third party in June of 1990 for a figure substantially less than the contract price. The plaintiffs brought this action, in two counts, to recover their deposit. The first count alleged that the defendants breached the contract by failing to have the premises completed by December 29, 1989. The second count alleged that the actions of the defendants "constituted unfair, immoral, unethical, oppressive and unscrupulous business practices" in violation of General Statutes § 42-110b of the Connecticut Unfair Trade Practices Act (CUTPA). The defendants' answer raised special defenses concerning waiver and estoppel, substantial performance, fraudulent representation, setoff, and the nonapplicability of CUTPA. The defendants additionally filed a counterclaim in two counts to recover the difference between the contract price and the actual selling price. The plaintiffs' answer to the counterclaim raised seven special defenses to each count. After the pleadings were closed, the plaintiffs filed a motion for summary judgment on the complaint, supported by four affidavits, a deposition and answers to interrogatories. In opposition, the defendants offered three counter affidavits and two depositions. The trial court granted the plaintiffs' motion for summary judgment and, in response to the defendants' motion for articulation, clarified that it had also granted summary judgment for the plaintiffs on the counterclaim. This appeal followed. I The defendants' first four claims, taken together, contend that the trial court improperly granted the plaintiffs' motion for summary judgment on the complaint because there were material factual issues to be determined. Practice Book § 384 provides that summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Further, "[tjhe party seeking summary judgment bears the burden of showing the nonexistence of any material fact, which is any fact that will make a difference in the result of a case." Bassin v. Stamford, 26 Conn. App. 534, 537, 602 A.2d 1044 (1992). "Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Citations omitted; internal quotation marks omitted.) Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1990). It is axiomatic that "[i]n order to oppose successfully a motion for summary judgment, the opposing party must recite facts . . . which contradict those offered by the moving party." (Internal quotation marks omitted.) Citizens National Bank v. Hubney, 182 Conn. 310, 312, 438 A.2d 430 (1980). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party." Connell v. Colwell, supra, 246-47. Moreover, "[i]n ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Lomangino v. LaChance Farms, Inc., 17 Conn. App. 436, 438, 553 A.2d 197 (1989). Among the issues claimed to require a factual determination is the question of whether the contract had been substantially performed on December 29, 1989, the date on which the plaintiffs terminated the contract. The parties generally agree on the status of the house on the morning of December 29,1989. When the mortgage lender's inspector arrived that morning, there were no contractors on the site. The house still lacked several items including a sewage-waste permit, a rail ing on the front porch, a completed garage floor, floor coverings, and bathroom fixtures. The defendants claim, however, that the inspection was conducted before the agreed upon time. Had the inspection taken place at the proper time, they argue, the inspector would have seen that the required work was being done. The defendants also submitted an affidavit and deposition as evidence that much of the work was completed by the end of the day. In contrast, the plaintiffs contend that the house could not have been substantially complete either on December 29,1989, or on the closing date of January 2, 1990, because the town building inspector declined to issue a certificate of occupancy until January 4, 1990. The determination of "[wjhether a building contract has been substantially performed is ordinarily a question of fact for the trier to determine." Nor'easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 472, 542 A.2d 692 (1988); Argentinis v. Gould, 23 Conn. App. 9, 14, 579 A.2d 1078 (1990), rev'd in part, 219 Conn. 151, 592 A.2d 378 (1991). The analysis necessarily involves an inquiry into the totality of facts and circumstances surrounding the performance of the contract. See 2 E. Farnsworth, Contracts § 8.12. Although the issuance of a certificate of occupancy may be evidence of substantial performance, it is not dispositive of the question. See, e.g., Argentinis v. Gould, supra. Other factors to be considered include the extent to which the injured party will be deprived of the benefit reasonably expected, the extent to which that party can be adequately compensated for the deficiency of performance, the extent to which the performing party will suffer forfeiture, the likelihood that the performing party will cure his failure in light of the circumstances and his reasonable assurances, and the extent of good faith and fair dealing on the part of the performing party. See 2 Restatement (Second), Con tracts § 237 comment d, and § 241; see also Vincenzi v. Cerro, 186 Conn. 612, 616, 442 A.2d 1352 (1982). In light of these factual considerations, our review of the record satisfies us that the plaintiffs had not met their burden of showing the absence of any genuine issues of material fact regarding substantial performance. Genuine issues remained, for example, concerning the extent to which the status of the house conformed to the contract and the reasonable expectations of the plaintiffs on December 29, 1989, and January 2, 1990. Genuine issues also remained regarding the good faith and fair dealing of the defendants. This element of the substantial performance inquiry was placed in issue by the plaintiffs' allegations of misrepresentation on the part of the defendants. The defendants claimed, however, to have applied their best efforts, both to keep the plaintiffs informed of the progress of the house and to complete the house within the allotted time. In support of those claims, the defendants submitted affidavits that detailed the history of the construction of the house and the relationship of the parties. Additionally, the defendants alleged, by special defense, that the plaintiffs had fraudulently misrepresented their intention to purchase the house. Allegations such as misrepresentation and fraud present issues of fact. Maturo v. Gerard, 196 Conn. 584, 587, 494 A.2d 1199 (1985). Moreover, "[w]hether evidence supports a claim of fraudulent or negligent misrepresentation is a question of fact." McClintock v. Rivard, 219 Conn. 417, 427, 593 A.2d 1375 (1991). "It is . . . well recognized that summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions . It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given to their testimony can be appraised." (Citations omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 376, 260 A.2d 596 (1969). Nevertheless, it remains "incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined as a matter of law, that a genuine issue of material fact exists." Connell v. Colwell, supra, 251. In the present case, the record reveals that the defendants had established an adequate factual predicate to demonstrate the existence of a genuine issue of material fact concerning their good faith and fair dealing. Another issue was the question of whether time was of the essence. Generally, "[wjhere a time for performance is stated in an agreement, a party's tender of performance within a reasonable time thereafter will be considered substantial performance unless the parties intend that time for performance be of the essence." Mihalyak v. Mihalyak, 11 Conn. App. 610, 616, 529 A.2d 213 (1987). Because delays are typical in transactions involving real property or building contracts, time is ordinarily not of the essence in these contracts. 6 S. Williston, Contracts (3d Ed.) § 849, 852; 3A A. Corbin, Contracts § 720. The resolution of whether it is part of the contract involves a "question of the intent of the parties, to be determined, as a matter of fact, from the language of the contract, the circumstances attending its negotiation, and the conduct of the parties in relation thereto." Kakalik v. Bernardo, 184 Conn. 386, 393, 439 A.2d 1016 (1981). Where "a definite date for performance is specified in the agreement, but performance on time is not of the essence, either party has power to make on that date or on some subsequent date performance essential and a condition of his own duty by giving notice to that effect, provided that the notice leaves a reasonable time for rendering the performance." 3A A. Corbin, Contracts § 723, p. 383; see also Fullerton v. McGowan, 6 Conn. App. 624, 629, 507 A.2d 473 (1986). The reasonableness of the time demanded "depends upon the character of the performance promised and upon all of the surrounding circumstances that the parties know or have reason to know." 3A A. Corbin, Contracts § 723, p. 384. In the present case, the plaintiffs notified the defendants by letter dated November 27,1989, that time was of the essence and that the closing must take place on December 12, 1989. Thereafter, the plaintiffs agreed to postpone the closing date three more times and, according to the defendants, made no further mention that time was of the essence. Consequently, the record demonstrates that there were unresolved genuine issues of material fact regarding the validity and effect of the plaintiffs' notification as well as the reasonableness of the various times set for performance. Accordingly, in view of the genuine issues of material fact yet to be determined, we hold that the trial court improperly granted the plaintiffs' motion for summary judgment on the complaint. II The defendants next assert that the trial court improperly granted summary judgment on the defendants' counterclaim on the basis that no motion seeking summary judgment on the counterclaim was before the court. Cummings & Lockwood v. Gray, 26 Conn. App. 293, 299, 600 A.2d 1040 (1991), which was decided after the briefs had been filed in this appeal, is dispositive of the issue. The plaintiffs' motion for summary judgment was directed solely to the complaint. Neither party had filed a motion for summary judgment on the counterclaim, and neither party had notice that the counterclaim was at issue. In that situation, "[a] court may not grant summary judgment suasponte. . . . The issue first must be raised by the motion of a party and supported by affidavits, documents or other forms of proof. Booth v. Flanagan, [19 Conn. App. 413, 415, 562 A.2d 592 (1989)]. Further, 'any party may move for summary judgment upon any counterclaim . . . as if it were an independent action.' Practice Book § 379. Because a counterclaim is a separate and distinct action; Practice Book § 379; Home Oil Co. v. Todd, 195 Conn. 333, 341, 487 A.2d 1095 (1985); a party seeking summary judgment on both a complaint and a counterclaim must file an appropriate motion addressed to each. See Practice Book § 379." (Citations omitted.) Cummings & Lockwood v. Gray, supra. Accordingly, the trial court was without authority to grant summary judgment on the counterclaim. Id., 299-300. The judgment on the complaint and on the counterclaim is reversed and the case is remanded for further proceedings. In this opinion the other judges concurred. The defendants stated the issues as follows: "1. Did the Court err in finding as a matter of law that the defendants-appellants had 'failed to state facts sufficient to support a finding that a genuine issue of material fact exists and that the plaintiffs are not entitled to summary judgment as a matter of law'? "2. Did the Court err in finding that the defendants' submission of documents failed to establish the existence of a genuine issue of material fact? "3. Did the Court err as a matter of law in concluding that no genuine issue of fact existed? "4. Did the Court err as a matter of law in entering summary judgment [on] the plaintiffs' Motion for Summary Judgment? "5. Did the Court err as a matter of law in entering summary judgment for plaintiffs on the Counterclaim of defendants-appellees?"

Freedman, J. The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of the crime of assault in the first degree in violation of General Statutes § 53a-59 (a) (1), and two counts of the crime of carrying a pistol without a permit in violation of General Statutes § 29-35. The defendant claims that the trial court (1) improperly instructed the jury regarding self-defense, and (2) made a series of improper interrelated rulings that had the cumulative effect of depriving the defendant of his right to a fair trial. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. In the early morning hours of March 21, 1990, the victim was involved in a craps game with the defendant and another individual, "Cat" Bunkley, at the defendant's apartment in Hartford. The game ended at approximately 2 a.m. when the victim had won approximately $1100 from the defendant and Bunkley. At that time, there was a discussion between the defendant and the victim about the return of some money to the defendant, which he claimed the victim owed to him for a loan made approximately one year earlier. The victim refused to give the defendant any money, but stated that he would "see what [he could] do." The victim then decided to return to his apartment, which was directly across the street, to count his winnings. On his way out of the apartment building, the victim stopped by the apartment of some friends, William and Kenneth Stewart, and told them about his winnings and asked them to escort him across the street to his apartment. The three left the Stewarts' apartment, and were accompanied across the street by the defendant and Bunkley. While they walked, one of the Stewarts heard the defendant ask the victim, "Do you have anything for me?" When the group reached the victim's apartment, the victim and the Stewarts entered through a door that opened into the kitchen. They closed the door behind them, leaving the defendant and Bunkley in the hall. The victim began counting his cash when the defendant knocked on the door. When the victim opened the door, the defendant asked for money from the victim, who advised the defendant to wait until he finished counting his winnings and then closed the door. The defendant then knocked on the door again. The victim opened the door a second time and told the defendant to wait, and when the victim tried to close the door again, the defendant stuck his foot in the threshold to prevent the victim from closing it. At this time, the victim moved toward one side of the kitchen to light a cigarette over the stove, which was near the doorway in which the defendant was then standing. As he did so, the defendant pulled out a pistol and shot the victim in the right shoulder. The defendant then left the scene. The defendant first claims that the trial court improperly instructed the jury on the law applicable to his self-defense claim. Specifically, he claims that in instructing the jury on self-defense pursuant to General Statutes § 53a-19, the trial court improperly stated that the "reasonable force" to be evaluated by the jury "is that force which an average person of ordinary intelligence in like circumstances would judge to be necessary to prevent injury and no more." (Emphasis added.) In other words, this portion of the charge given by the trial court instructed the jury to evaluate the defendant's use of force strictly on an objective basis. The defendant argues that this definition of reasonable force impermissibly replaced the subjective-objective standard required by § 53a-19 and, therefore, deprived the defendant of his constitutional right to have his jury properly instructed. The defendant has not properly preserved this claim for appellate review. He seeks review, however, under the well established principles for reviewability of unpreserved constitutional claims as set forth in State v. Golding, 213 Conn. 232, 239-40, 567 A.2d 823 (1989), because his fundamental right to present a defense includes a proper instruction on the elements of self-defense. State v. Gilchrist, 24 Conn. App. 624, 632-33, 591 A.2d 131, cert. denied, 219 Conn. 905, 593 A.2d 131 (1991). On the basis of State v. Williams, 25 Conn. App. 456, 462, 595 A.2d 895, cert. denied, 220 Conn. 916, 597 A.2d 339 (1991), we conclude that the defendant cannot prevail on this claim because the court's instruction, although containing an incorrect statement of the law, was harmless beyond a reasonable doubt. In Williams, the defendant challenged the following language of the trial court's instruction on self-defense: " '[Reasonable force' . . . 'is the amount of force that would be used by an average person of ordinary intelligence, acting under the same circumstances.' " Id., 463. As the state concedes in its brief, an instruction on self-defense that fails to instruct the jury to evaluate the defendant's use of force on a subjective-objective basis, such as the challenged instruction here and that given in Williams, is an incorrect statement of the law under § 53a-19. Section 53a-19 requires that the jury evaluate, among other things, the perception of the danger that the defendant faced and his use of force in response to that perceived danger. "Where, as here, the improper instruction is of constitutional dimension, the test is whether it is reasonably possible that the jury was misled." Id., 465. As Williams points out, the defendant's perception of the danger he faced, and his use of force in response to that perceived danger, although two distinct legal concepts for purposes of analyzing the trial court's instructions, "are so inextricably intertwined that they cannot be analyzed in a vacuum, one separated from the other. The degree of force used by a defendant must necessarily be evaluated in relationship to something. That something is the danger that was perceived by the defendant." (Emphasis in original.) Id. The Williams court then considered the instructions given by the trial court regarding the perception of danger, and determined that that part of the instruction "enabled the jury properly to carry out its duty to examine the evidence both subjectively and objectively, while keeping in mind that the defendant's conduct must 'be judged ultimately against that of a reasonably prudent person.' " Id., 466. The court concluded, therefore, that the improper instruction was harmless beyond a reasonable doubt. As previously stated, the challenged portion of the jury instruction here is nearly identical to that challenged in Williams. The trial court's instruction regarding the defendant's perception of danger is also nearly identical to that given in Williams. Because we see no meaningful distinction between the facts of Williams and the facts of the present case, we conclude that it is not reasonably possible that the jury was misled and that the improper instruction was harmless beyond a reasonable doubt. The defendant suggests that the instruction given in his case is distinguishable from that given in Williams because he claims that the trial court also improperly instructed the jury regarding his duty to retreat. Section 53a-19 (b) provides that "a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating . . . ." The trial court, however, instructed the jury that the defendant would not be justified in using force if he could have retreated "with safety." The defendant claims that the trial court's failure to include the word "complete" in this portion of its charge was improper, and thus, when combined with the other improper portion of the instruction, it is reasonably possible that the jury was misled. We disagree. Although the trial court's failure to include the express language of the statute in its charge to the jury may be improper; State v. Holloway, 209 Conn. 636, 651, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989); State v. Cobb, 199 Conn. 322, 324-25, 507 A.2d 457 (1986); State v. Carpenter, 19 Conn. App. 48, 56-57, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989); it did not alter the substantive meaning of the statute in any way. Webster's Third New International Dictionary defines safety as "freedom from exposure to danger." The term safety, therefore, necessarily entails complete safety and thus the absence of the word "complete" from the trial court's instructions was harmless beyond a reasonable doubt. The defendant's second claim is that a combination of improper interrelated rulings had the cumulative effect of depriving the defendant of a fair trial. He claims that the trial court improperly (1) refused to admit into evidence the defendant's entire written police statement, (2) conducted an offer of proof on the defendant's self-defense claim, (3) failed to direct a mistrial in the light of prosecutorial misconduct, (4) permitted the state to impeach the defendant with a prior inconsistent statement made during the offer of proof, (5) failed to admit into evidence his written police statement after the state impeached him, and (6) excluded surrebuttal evidence offered by the defendant relating to the prior inconsistent statement. Additional facts must first be set out in order to address these claims. At the time of the defendant's arrest, he gave a sworn written statement to the police regarding the incident in question. In it he stated that when he saw the victim move toward an open drawer, "with fear for my life I then defended myself." During the state's casein-chief, the state sought an advance ruling, outside of the jury's presence, regarding the voluntariness of the defendant's police statement. The state indicated to the court that it did not intend to offer any part of the written statement into evidence, but it sought the ruling because it planned to call Detective Stanley Lukas, who took the defendant's statement at the police station, to testify that the defendant admitted carrying a pistol. The defendant did not object to the request for an advance ruling. Rather, he merely argued that the pistol was inadmissible because the police had seized it during an allegedly improper warrantless arrest. The court determined that the statement was voluntarily given during a police interrogation, and Lukas then testified that the defendant told him that he carried the gun for his own protection. At the beginning of his case, the defendant called Lukas and attempted to introduce the defendant's entire written statement through him. The defendant argued that the statement was admissible as an admission and as a declaration against interest. The court refused to permit the introduction of the statement at this time and the defendant took exception to the ruling. The defendant then took the stand and testified as to his version of the chain of events leading up to the shooting. On direct examination, he testified that the victim was a drug and alcohol abuser and had a reputation for violence. The state objected to this testimony. It claimed that such testimony was not relevant unless the defendant presented a claim of self-defense. It requested that the defendant make an offer of proof regarding his possible self-defense claim, and the defendant did not object to this request. During the offer of proof, which was outside of the presence of the jury, the defendant stated that he did not intentionally shoot the victim, but that the gun accidentally discharged when he pulled it out of his coat pocket. The state argued, still outside of the presence of the jury, that the defendant did not adequately present a self-defense claim through this offer because self-defense requires an intentional act, which the defendant had stated during his offer of proof did not occur. The court rejected this argument. The jury was called back into the courtroom and the defendant continued his direct testimony. When asked about the shooting, the defendant testified that he aimed the pistol at the victim's shoulder and shot the victim to defend himself. On cross-examination, the state questioned the defendant about his inconsistent versions of the incident. The defendant first acknowledged that he stated during his offer of proof that the shooting was accidental. The state then asked the defendant whether his decision to forgo an accident defense in his testimony to the jury was influenced by the state's argument during the offer of proof that a claim of accident precludes a claim of self-defense. The defendant denied that he heard the particular argument to which the state was referring. Upon further cross-examination, the defendant denied that he stated during the offer of proof that the gun went off accidentally. During the state's rebuttal of the defendant's case, the state moved to admit the portion of the transcript from the offer of proof where the defendant claimed that the shooting was accidental. The state sought to admit the transcript, not for the truth of the matter contained therein, but rather to impeach the defendant by contradicting the defendant's testimony before the jury in which he denied that he made the accident claim. The trial court, over the defendant's objection, admitted the transcript. The defendant then moved to present surrebuttal testimony of the defendant to clarify, contradict and explain the prior inconsistent statement. The trial court denied the defendant's motion, to which the defendant excepted. Then, during final argument, the prosecutor highlighted the inconsistency of the defendant's claims and suggested that the defendant changed his inconsistent defense to one of simply self-defense after he heard the prosecutor's argument during the offer of proof. The defendant first claims that the trial court improperly refused to admit into evidence the defendant's entire written police statement after the state, in its case-in-chief, elicited from Lukas certain statements that the defendant made to him during interrogation. On appeal, the defendant claims that the statement should have been admitted in order to "elicit the context in which the admission was made . . . ." Although the defendant excepted to the trial court's ruling, he failed to state on the record this reason for the statement's admission into evidence. At trial, he argued that the entire statement was admissible as an admission or as a declaration against interest. "In raising claims of error on appeal, parties are limited to arguing the authority and grounds for objections that were presented at trial. State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982)." In re Christopher G., 20 Conn. App. 101, 107, 564 A.2d 619 (1989), cert. denied, 213 Conn. 814, 569 A.2d 549 (1990). We are not bound to consider claims that are not distinctly raised at trial. Practice Book § 4185. Review of evidentiary rulings is limited to the specific legal ground raised on the objection. State v. Velez, 17 Conn. App. 186, 192, 551 A.2d 421 (1988), cert. denied, 210 Conn. 810, 556 A.2d 610, cert. denied, 491 U.S. 906, 109 S. Ct. 3190, 105 L. Ed. 2d 698 (1989). Because the defendant does not raise the same claim of admissibility of the statement that he did at trial, we will not review this claim. The defendant's second challenge is to the trial court's conducting an offer of proof on the defendant's claim of self-defense. He claims that it "clearly deprived him of fair proceedings." This claim was not preserved at trial, but the defendant requests both Golding and plain error review of this claim. We fail to see how this offer of proof deprived the defendant of a constitutional right. Because the defend ant had not interposed a self-defense issue into the case at the time he sought to have character evidence of the victim admitted, an offer of proof was an appropriate method for ascertaining whether the defendant could properly make such a claim such that the trial court could conditionally admit the evidence at the time, subject to the defendant's connecting it to a self-defense claim later. The defendant has failed to satisfy both the second and third prongs of Golding, and thus is not entitled to review of this claim. The defendant's next claim appears to be one of prosecutorial misconduct. The defendant argues that the prosecutor improperly argued that a defendant cannot legally assert inconsistent defenses. During the offer of proof on the defendant's self-defense claim, the defendant stated that he did not intentionally shoot the victim, but that the gun went off accidentally when the defendant pulled it out of his jacket pocket. While the jury was still out, the state argued that this testimony would not inject the issue of self-defense into the case. It argued that because he testified that the gun went off accidentally, he cannot claim self-defense because self-defense requires an intentional act. Later, when the defendant presented self-defense testimony to the jury, the state attempted to impeach the defendant with the statement made at the offer of proof. Then, during its summation, the state highlighted the inconsistency in the defendant's defense. The defendant did not preserve this claim, but argues that it is amenable to Golding review. We first note, however, that the state's initial argument regarding the inconsistent claims was made outside of the jury's presence during the defendant's offer of proof, and therefore did not harm the defendant in any way. When the prosecutor asked the defendant on cross-examination whether he changed his defense after he heard the prosecutor's argument regarding inconsistent defenses during the offer of proof, the trial court limited the questioning to whether the defendant had heard an argument concerning the law of inconsistent defenses. The prosecutor did not state that the law prohibits inconsistent defenses. Then, when the prosecutor commented on the inconsistent defenses during summation, he did not claim that the law prohibited them, but rather highlighted the defendant's retreat from his accident defense as bearing on his credibility. Although State v. Harris, 189 Conn. 268, 273, 455 A.2d 342 (1983), permits a defendant to assert inconsistent defenses, it does not prohibit the state from exposing the defendant's inconsistent positions on cross-examination. Because the defendant has failed to demonstrate a pattern of misconduct repeated throughout the trial or that the prosecutor's conduct was blatantly egregious, the defendant cannot prevail on his unpreserved prosecutorial misconduct claim. State v. Tweedy, 219 Conn. 489, 509-10, 594 A.2d 906 (1991); State v. Williams, 204 Conn. 523, 536-37, 529 A.2d 653 (1987). The defendant also claims that the trial court improperly permitted the state to impeach the defendant with statements he made under oath during the offer of proof. After the defendant testified on direct examination that he shot the victim in self-defense, the state, on cross-examination, asked the defendant whether he remembered saying during the offer of proof that the gun went off by accident. The defendant, at one point in his testimony, responded affirmatively to the state's questioning. The defendant argues that the impeachment was improper because the defendant admitted that he had made inconsistent statements. "A trial court has wide discretion in allowing prior inconsistent statements to impeach the testimony of a witness. State v. Torres, 210 Conn. 631, 640, 556 A.2d 1013 (1989). Every reasonable presumption will be made in favor of the trial court's proper exercise of its discretion. State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985)." State v. Graham, 21 Conn. App. 688, 703, 575 A.2d 1057, cert. denied, 216 Conn. 805, 577 A.2d 1063 (3990). " Tt is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimension, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.' State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). The question is whether the claimed erroneous action of the trial court is likely to have affected the result of the trial. State v. Brown, 199 Conn. 14, 25, 505 A.2d 690 (1986); State v. Gonzales, 196 Conn. 115, 119, 491 A.2d 1067(1985)." State v. Torrice, 20 Conn. App. 75, 91, 564 A.2d 330, cert. denied, 213 Conn. 809, 568 A.2d 794 (1989). The defendant has failed to demonstrate to us how the admission of the prior inconsistent statement was harmful to him. Because of this failure, the defendant's claim must fail. The defendant also claims that once the prior inconsistent statement was elicited through the state's cross-examination of the defendant, his entire written statement to the police should have been admitted to rehabilitate the defendant because in it the defendant had stated that he acted in self-defense. As the state points out and we concur, however, "the defendant ignores the fact that he never moved to admit the written statement following the state's admission of the transcript excerpt. In essence, he does no more than fault the court for not assuming the role of his advocate." Further discussion of this claim, therefore, is unwarranted. Finally, the defendant claims that he should have been able to testify in surrebuttal after the state introduced into evidence certain portions of the transcript from the offer of proof. He claims that the trial court improperly precluded him from rehabilitating his credibility by explaining what he meant when he stated that the gun went off by accident. "The trial court is vested with considerable discretion in the matter of rebuttal evidence. State v. Simino, 200 Conn. 113, 123, 509 A.2d 1039 (1986); State v. Lisella, 187 Conn. 335, 337, 445 A.2d 922 (1982). 'Ideally, rebuttal evidence is that which refutes the evidence [already] presented . . . rather than that which merely bolsters' one's case. State v. Lisella, supra." State v. Wood, 208 Conn. 125, 139, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988). The state's rebuttal evidence was not new evidence. Rather, it was simply relevant portions of the transcript of the defendant's testimony during the offer of proof. The defendant had already been cross-examined about these statements and, in fact, admitted the very inconsistency that the transcript contained regarding the accidental shooting. The defendant had ample opportunity to rehabilitate his credibility when he was previously examined on redirect. The trial court concluded that the defendant "could have explained [the inconsistency] this morning." In other words, the testimony that the defendant sought to provide on surrebuttal did not respond to anything new. We conclude that the trial court did not abuse its discretion. Because none of these issues merits our review or is meritorious upon our review of it, we conclude that the cumulative impact of these rulings did not deny the defendant a fair trial. See State v. Harris, 182 Conn. 220, 230-33, 438 A.2d 38 (1980); State v. Hudson, 14 Conn. App. 463, 472, 541 A.2d 534, cert. denied, 209 Conn. 803, 548 A.2d 439 (1988). The judgment is affirmed. In this opinion Daly, J., concurred. The jury acquitted the defendant of two additional charges, attempted murder, and attempted robbery in the first degree. General Statutes § 53a-19 provides: "(a) Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm. "(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform. "(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law." The trial court also instructed the jury as follows: "A defendant claiming justification of self-defense may use — may only use reasonable force to defend himself. Reasonable force is the amount of force that would be used by an average person of ordinary intelligence acting under the same circumstances." Under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), the defendant can prevail on his unpreserved constitutionally based claims only if the following four conditions are met: "(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." Under the subjective-objective test, the jury must first determine whether the defendant believed that the use of reasonable force was necessary, and then it must determine whether that belief was reasonable under the circumstances. State v. Williams, 25 Conn. App. 456, 464, 595 A.2d 895 (1991). In State v. Williams, 25 Conn. App. 456, 466 n.5, 595 A.2d 895 (1991), the trial court instructed the jury as follows regarding the defendant's perception of the danger he faced: "The danger or apparent danger claimed by the defendant is to be determined from his standpoint at the time of the attack, and under all the existing circumstances. The action leading to the defendant's claim of self-defense need not be an actual threat or assault. The test is not what the other person actually intended, but what the aggressor's act caused the defendant reasonably to believe was his intention. In other words, the danger need not have'been actual, if the defendant reasonably believed that the danger was actual, real, imminent or unavoidable. "In judging the danger to himself, however, the defendant is not required to act with infallible judgment. On the other hand, one exercising the right of self-defense is required to act instantly, and without time to deliberate and investigate. Under such circumstances it is often possible to mistake an actual threat when none, in fact, existed, but the law does not require the same coolness in judgment in estimating his danger that you can exercise in reviewing the facts of this case." (Internal quotation marks omitted.) The trial court charged the jury as follows: "The danger or apparent danger claimed by the defendant is to be determined from his standpoint at the time of the attack and under all the circumstances. The act leading to the defendant's claim of self-defense need not be an actual threat or assault. The test is not what the other person actually intended but what the aggressor's act caused the defendant to reasonably believe was his intention. In other words, the danger need not have been actual if the defendant reasonably believed that the danger was actual, real, imminent or unavoidable. In judging the danger to himself, however, the defendant is not required to act with infallible judgment. Ordinarily, one exercising the right of self-defense is required to act instantly and without time to deliberate and investigate. Under such circumstances, it is often possible to mistake an actual threat when none in fact existed but the law does not require the same coolness in judgment in estimating his danger that you can exercise in reviewing the facts of this case." The following dialogue between the defendant and his attorney appears in the transcript: "Defense Attorney: When you pulled out your handgun, what were you going to do? "Defendant: Well, initially, I was going to let him know not to make that move because something, you know, might happen if you threaten me about, you know, about killing me. "Defense Attorney: All right. And then what happened? "Defendant: Well, the gun went off. "Defense Attorney: Did you aim it at him? "Defendant: Well, not intentionally aimed at him because if I aimed at him and was going to use it in that respect, I would have shot him in the head or something if I was trying to kill him. "Defense Attorney: Did you intentionally shoot the gun? "Defendant: No. "Defense Attorney: What happened? "Defendant: It went off when I pulled it out. It was such a fast act with him telling me he's going to show me and— "Defense Attorney: Well, how was it he was shot in the — in his right shoulder? What happened when— "Defendant: I don't understand. "Defense Attorney: — you pulled the gun out? "Defendant: Would you like me to go through the motions? "Defense Attorney: Yes."

Berdon, J. In this product liability claim brought pursuant to the Product Liability Act (act); General Statutes § 52-572m et seq.; the dispositive issue is whether the defendant product seller was entitled to a jury instruction on the defense of alteration or modification predicated on misuse under General Statutes § 52-572p, in addition to an instruction on misuse under the common law. The plaintiff Steven Elliot brought this action for damages as a result of injuries he received in a fall from a ladder sold by the defendant, Sears, Roebuck and Company. The jury, in finding the issue of liability in favor of the plaintiff, also found that the damages sustained by the plaintiff totaled $136,050, and that those damages were to be reduced by 25 percent as a result of the plaintiffs comparative responsibility. The trial court accordingly reduced the plaintiffs award, and rendered judgment for the plaintiff in the amount of $102,037.50. After the trial court denied the defendant's motion to set aside the verdict, the defendant appealed to the Appellate Court. The Appellate Court affirmed the trial court's judgment; Elliot v. Sears, Roebuck & Co., 30 Conn. App. 664, 621 A.2d 1371 (1993); and we granted the defendant's petition for certification. Although we affirm the judgment of the Appellate Court, we base our decision on an analysis of the statutory language not relied upon by that court. The jury could reasonably have found the following facts. In April, 1987, the plaintiff and his wife, with the assistance of a contractor, were adding a full second floor to their A-frame house in Waterford. As a means of access to the new floor under construction, they borrowed a sixteen foot aluminum extension ladder, constructed with rounded rungs, belonging to the plaintiffs father-in-law. The ladder had been purchased from the defendant in 1985. The plaintiff set up the ladder in the following manner. The base of the ladder was secured against a board that was nailed into the floor framing. The "fly" of the ladder, the moving part which extends its length, was extended one or two feet and tied to a two-by-four affixed to a partition on the second floor. The plaintiff set up the ladder in this manner so that it would not move or slip during use. The ladder was set at approximately a sixty degree angle, so that it would function as a staircase. At the top of the fly of the ladder, there was a sharp metal edge that was exposed when the ladder was extended. The plaintiff had not noticed this exposed edge prior to his injury. The plaintiff often descended the ladder with his back to the rungs. A label on the ladder warned users "always [to] face ladder when climbing, working or descending." The label also contained the warning that users should always maintain a firm grip on the ladder. The plaintiff had not read any of the labels on the ladder prior to his accident. On April 17, 1987, the plaintiff was visited by a friend. They each climbed the ladder to the second floor so the plaintiff could show him the progress made on the addition. After fifteen to twenty minutes, the telephone, which was located in the kitchen on the first floor, rang. In order to answer the telephone, the plaintiff descended the ladder, with his back to it, and about half way down he lost his balance and slipped. As he fell, he reached out with his left hand to grab something to steady himself. He was wearing his wedding ring on his left hand ring finger. As he attempted to break his fall, the ring snagged on the exposed sharp metal edge at the top of the extension ladder. This caused the plaintiff to suffer a degloving injury to the finger, leaving him with an exposed bone and tendon without any skin or soft tissue. His finger was eventually amputated. Eric Jordan, an associate professor of mechanical engineering at the University of Connecticut, testified as an expert witness for the plaintiff. Jordan testified that it is generally recognized that metal ladders should include end caps and end closures or equivalent protection against sharp edges and snagging. He testified that although the ladder did include end caps, there was an exposed sharp upper edge of the ladder that was not capped. In his opinion, this presented a significant hazard of snagging, and therefore the end caps included with the ladder did not "fulfill the intended purpose of the end cap with regards to preventing snagging and sharp edge injury." In Jordan's opinion, the ladder was unreasonably dangerous due to the defectively designed end caps. Jordan also testified that the top of the ladder could have been fully capped without impairing the function of the ladder and without incurring a significant cost. Finally, he testified that although it is a misuse of the ladder to descend with one's back to the ladder, it is a common and foreseeable misuse that could reasonably be anticipated by the seller. In adopting the act, the legislature intended to incorporate in a single cause of action an exclusive remedy for all claims falling within its scope. Winslow v. Lewis- Shepard, Inc., 212 Conn. 462, 471, 562 A.2d 517 (1989). In doing so, "the legislature was merely recasting an existing cause of action and was not creating a wholly new right for claimants harmed by a product. The intent of the legislature was to eliminate the complex pleading provided at common law. . . . 22 S. Proc., Pt. 14, 1979 Sess., pp. 4637-38; 22 H.R. Proc., Pt. 20, 1979 Sess., pp. 7021-22." Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 292, 627 A.2d 1288 (1993). The act, however, is no model of clarity; an example is its ambiguous treatment of the defense of misuse that has resulted in this appeal. One point of confusion regarding the act, as demonstrated by the briefs of the parties before us and by members of the bar, is the belief that it was patterned after the Model Uniform Product Liability Act (model act), 44 Fed. Reg. 62714-50 (1979), recommended by the United States Department of Commerce on October 31, 1979. As we have previously stated, however, the act is based on the Draft Uniform Product Liability Law (draft act), published by the Department of Commerce on January 12, 1979, in 44 Fed. Reg. 2996 et seq. for public comment. See Freeman v. Alamo Management Co., 221 Conn. 674, 681 n.7, 607 A.2d 370 (1992); Winslow v. Lewis-Shephard, Inc., supra, 212 Conn. 469. This origin of our act is indicated by the date of its adoption, its language, and its legislative history. There are substantial differences between the model act and the draft act. This is particularly so in regard to § 112 of the model act, upon which the defendant relies, as indicated below in this opinion. The defendant, in addition to denying liability, raised two special defenses that are relevant to this appeal. In the first special defense, upon which the trial court instructed the jury, it alleged misuse of the product under the common law. The defendant based this claim on its allegations that the plaintiff descended the ladder as though it were a staircase, facing away from the ladder, and failed to read and follow the instructions and warnings concerning the use of the ladder. In the second special defense, predicated upon General Statutes § 52-572p, the defendant alleged that the "ladder was altered or modified by the plaintiffs or a third-party from the condition in which it was sold." The trial court refused to instruct the jury on the second special defense, but did instruct on the first. The defendant claims that, although the trial court satisfactorily instructed the jury on the common law defense of misuse, it was also entitled to an instruction on the second special defense predicated on statutory altera tion/modification by misuse under § 52-572p. Section 52-572p provides in pertinent part: "(a) A product seller shall not be liable for harm that would not have occurred but for the fact that his product was altered or modified by a third party unless: (1) The alteration or modification was in accordance with the instructions or specifications of the product seller; (2) the alteration or modification was made with the consent of the product seller; or (3) the alteration or modification was the result of conduct that reasonably should have been anticipated by the product seller, (b) For the purposes of this section, alteration or modification includes changes in the design, formula, function or use of the product from that originally designed, tested or intended by the product seller." (Emphasis added.) The defendant argues that the defense of misuse under the common law and the defense of alteration/modification by "changes in the . . . use of the product" under § 52-572p are separate and distinct defenses. The distinction drawn by the defendant is as follows: common law misuse is the failure to use a product in the manner intended by or reasonably foreseeable to the seller, while alteration/modification by misuse under § 52-572p "changes some essential characteristic of the product so that the user no longer views the product as it was intended by the manufacturer. It makes the user behave differently than he or she would have behaved if the product was not altered." This is certainly a fine line distinction and would appear, in this case, to be a distinction without a difference. We agree with the defendant that misuse under the common law "occurs when a product is not used 'in a manner which should have been foreseen by the defendant.' " Norrie v. Heil Co., 203 Conn. 594, 600, 525 A.2d 1332 (1987), quoting Hoelter v. Mohawk Service, Inc., 170 Conn. 495, 517, 365 A.2d 1064 (1976). We also determine in this opinion that the common law defense of misuse by a plaintiff may be asserted in a claim brought under the act. We disagree, however, with the claim that the § 52-572p alteration/modification by misuse defense has any application to conduct by a plaintiff. In reaching our conclusion, we begin with the plain language of the act. "This court has consistently stated that [i]f the language of the statute is clear and unambiguous, it is assumed that the words themselves express the intention of the legislature and there is no room for judicial construction." (Internal quotation marks omitted.) Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 395, 618 A.2d 1340 (1993). By its own terms, § 52-572p limits its application to alterations and modifications made by a "third party." The term "third party" is not defined in the act. "Where a statute . . . does not define a term, it is appropriate to focus upon its common understanding as expressed in the law and upon its dictionary meaning." (Internal quotation marks omitted.) AirKaman, Inc. v. Groppo, 221 Conn. 751, 756-57, 607 A.2d 410 (1992). The dictionary definition of "third party" is "[o]ne not a party . . . to . . . an action"; Black's Law Dictionary (6th Ed. 1990); and therefore does not include a plaintiff. This conclusion is further reinforced by analyzing § 52-572p within the context of the act as a whole. The act provides the following definition of "claimant": "[A] person asserting a product liability claim for damages incurred by the claimant or one for whom the claimant is acting in a representative capacity." General Statutes § 52-572m (c). Accordingly, the plaintiff in this case is clearly a "claimant." If the legislature had intended to include a plaintiff's conduct under § 52-572p, it would have made the provision expressly applicable to "claimants" as it did with other provisions in the act. See, e.g., General Statutes § 52-572o (a) and 52-572q (a) and (b); see also New Haven v. United Illuminating Co., 168 Conn. 478, 485, 362 A.2d 785 (1975) (in determining the meaning of a word or designation, it is appropriate to look to related statutory provisions). Therefore, the legislature appears to have unambiguously crafted an alteration/modification defense that is not applicable to the conduct of a claimant. Even if it can be argued that "third party" as set out in § 52-572p is ambiguous, we determine that the "claimant" is not within its scope for several reasons. First, because our Product Liability Act is modeled on the draft act, we look for guidance to commentaries on the draft act. Maloney v. Pac, 183 Conn. 313, 326-27, 439 A.2d 349 (1981). More specifically, we consult the commentary to § 110 of the draft act because § 52-572p adopted the language of that provision nearly verbatim. The commentary states that § 110 of the draft act "deals with the situation where a third party—one other than the product seller or the claimant—has altered or modified the product and this has led to [the] claimant's harm." (Emphasis added.) 44 Fed. Reg. 3010 (1979). Second, our conclusion that the § 52-572p alteration/modification defense does not apply to the conduct of a claimant is further reinforced by its plain language that, with certain exceptions, provides for a complete bar to recovery when the product has been altered or modified. That statute provides that the product seller "shall not be liable for harm that would not have occurred but for the fact that his product was altered or modified by a third party . . . ." (Emphasis added.) Of course, the defendant's argument that the absolute bar of § 52-572p is applicable to the conduct of a claimant is inconsistent with § 52-572o, which provides that the claimant's right to recover is based on pure comparative responsibility. In other words, a partial recovery is allowed even if the claimant's injury is attributable mostly to his or her conduct. "A statute should be read as a whole and interpreted so as to give effect to all of its provisions." Pintavalle v. Volkanos, 216 Conn. 412, 418, 581 A.2d 1050 (1990). The purpose of this rule is to avoid construing the statutes in such a way as to create a conflict between statutes; "[sjuch . . . reconciliation is especially important in dealing with provisions that are enacted as part of the same legislation." Malerba v. Cessna Aircraft Co., 210 Conn. 189, 195, 554 A.2d 287 (1989). Third, construing § 52-572p to apply only to the conduct of persons or entities other than the claimant whose modifications or alterations of the product cause the claimant's injury is consistent with our common law. Prior to the enactment of the act, we adopted a cause of action in strict tort liability based on the Restatement (Second) of Torts § 402 A. Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 559-60, 227 A.2d 418 (1967). Section 402 A shields defendants from liability for products altered or modified by providing that the product seller can be liable only when the seller's product "was expected to and did reach the user or consumer without substantial change in the condition in which it was sold. " (Emphasis added.) Prokolkin v. General Motors Corp., 170 Conn. 289, 299, 365 A.2d 1180 (1976); Rossignol v. Danbury School of Aeronautics, Inc., supra, 559. In other words, the defendant would be absolved of liability under § 402 A if the plaintiffs injury was the result of an alteration or modification to the product made by a third party. See 2 Restatement (Second), Torts § 402 A, comment (g) (1965). "In determining whether or not a statute abrogates or modifies a common-law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope." Willoughby v. New Haven, 123 Conn. 446, 454, 197 A. 85 (1937). Our conclusion leaves the defense of misuse on the part of the claimant without an express statutory basis in the act. Although § 52-572o, the comparative responsibility provision, is based on and mirrors the first part of § 111 of the draft act, the second part of § 111 extends beyond § 52-572o by expressly delineating the specific types of conduct that are chargeable to the claimant, including misuse. The legislative history of our act is silent as to the reason why this part of § 111 was not adopted. Nevertheless, it is apparent that the legislature did not intend to eliminate consideration of the claimant's conduct in determining liability or the amount of damages. Otherwise, there would be no purpose for adopting the principle of comparative responsibility under § 52-572o. "In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result." (Internal quotation marks omitted.) State v. Hinton, 227 Conn. 301, 320, 630 A.2d 593 (1993). Furthermore, under our common and statutory law, misuse by the claimant is a defense to a product liability action. General Statutes § 52-572l; Norrie v. Heil Co., supra, 203 Conn. 594. We will not interpret a statute to have the effect of altering prior statutory or common law unless the language of the statute clearly expresses an intent to have such an effect. Lynn v. Haybuster Mfg., Inc., supra, 226 Conn. 290. No language of the act expresses such an intent. To the contrary, § 52-572o (a) contains broad language requiring the trier of fact to consider "the comparative responsibility of, or attributed to, the claimant, [which] shall not bar recovery but shall diminish the award of compensatory damages proportionately, according to the measure of responsibility attributed to the claimant." It is reasonable to construe this broad language to incorporate the defense of misuse of a product by a claimant. Accordingly, we conclude that the legislature did not intend to abrogate this common law defense, but rather the act incorporates misuse as part of the consideration of pure comparative fault. With this statutory construction in mind, we now turn to the trial court's instructions on misuse. With regard to the first certified question, although our conclusion is based on reasoning not relied upon by the Appellate Court, we agree with that court that the defendant was not entitled to a jury instruction on the defense of alteration/modification by misuse under § 52-572p. The trial judge did instruct on misuse under the common law and the defendant does not raise any claim of error in this respect. In regard to the second certified question, we conclude, and the defendant conceded at oral argument, that comparative responsibility under § 52-572o is applicable to the common law misuse defense. The defendant's claim that comparative responsibility is not applicable to misuse has reference solely to § 52-572p. The judgment is affirmed. In this opinion the other justices concurred. The plaintiff Robin Elliot, the wife of the named plaintiff, joined this action claiming damages for loss of consortium. See Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 627 A.2d 1288 (1993). The jury found that her damages totaled $10,000, and that those damages should be reduced by 25 percent as a result of her husband's comparative responsibility. The trial court accordingly rendered judgment in her favor in the amount of $7500. Because, for the purpose of the issues involved in this appeal, the merits of her case are dependent upon her husband's case, we make reference only to the plaintiff Steven Elliot in this appeal. The defendant also filed other postverdict motions, none of which are relevant to this appeal. We certified for review the following questions: "1. Where the defense of alteration/modification of a product is asserted as a defense to a product liability claim, and there is evidence to support that defense, is the defendant entitled to a jury instruction on that defense separate and apart from any instruction on the issue of misuse of the product? "2. Where it is claimed that misuse of a product is the proximate cause of an injury, and there is evidence to support that defense, is the defendant entitled to an instruction that if the jury so finds, the plaintiff is barred from recovery?" Elliot v. Sears, Roebuck & Co., 225 Conn. 925, 625 A.2d 826 (1993). The parties agreed that the plaintiff probably would not have fallen had he been facing the ladder as he descended it. See, e.g., R. Yules, "An Analysis of Connecticut's New Product Liability Law," 56 Conn. B.J. 269, 269 and n.1 (1982). "The [product liability] act . . . was effective on October 1,1979. The House of Representatives approved the final version of the act on May 11, 1979, and the Senate approved the act on May 29, 1979. 22 H.R. Proc., Pt. 21,1979 Sess., p. 4306; 22 S. Proc., Pt. 14,1979 Sess., p. 4650." Lynn v. Haybuster Mfg., Inc., supra, 226 Conn. 291. The model act was published for the first time in the Federal Register on October 31, 1979. Department of Commerce, Office of the Secretary, 44 Fed. Reg. 62714-50 (1979). See Public Acts 1979, No. 79-483, as amended by Public Acts 1979, No. 79-631, § 106. See 22 H.R. Proc., Pt. 20,1979 Sess., p. 7021, remarks of Representative John A. Berman ("the bill is based upon a Department of Commerce draft in the area of product liability"); 22 S. Proc., Pt. 14, 1979 Sess., p. 4636, remarks of Senator Salvatore C. DePiano; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1979 Sess., p. 568, remarks of John Anderson, member of the governor's product liability task force. In an articulation, the trial court gave its reasons for not instructing the jury under the special defense of alteration or modification as follows. "The court refused to charge as requested by the defendant on the issue of alteration or modification of the product because, in descending the ladder with his back to the ladder, [the] plaintiff . did not alter or modify the ladder as contemplated by General Statutes § 52-572p. Subsection (b) of [§] 52-572p defines alteration or modification to include 'changes in the design, formula, function or use of the product from that originally designed, tested or intended by the product seller.' The ladder was used by the plaintiff to ascend to, and descend from, one location to another location, which was the function or use intended by the product seller for the ladder." "The definition of claimant is based on the definition in the draft uniform product liability law." 22 S. Proc., Pt. 14,1979 Sess., p. 4636, remarks of Senator Salvatore C. DePiano. The legislature's first attempt to enact a comprehensive product liability act; Public Acts 1978, No. 78-380; was vetoed by Governor Ella Grasso. Conn. Senate Journal, Pt. 2, Veto Message (June 7,1978). Substantial differences between the product liability act and its vetoed predecessor provide additional evidence that the legislature's omission of "claimant" from General Statutes § 52-572p was intentional. The vetoed bill contained the following open-ended language: "In any products liability action, the manufacturer shall not be liable for any injury, death or property damage caused by a product which has been substantially altered or modified. " (Emphasis added.) Public Acts 1978, No. 78-380, § 4. It would appear that this broad language would apply to the conduct of a claimant as well as the conduct of third parties. In her veto message, Governor Grasso stated that one of the fatal flaws of the 1978 bill was an overly broad product alteration or modification defense. Conn. Senate Journal, Pt. 2, Veto Message (June 7, 1978). The 1979 bill; Public Acts 1979, No. 79-483, § 5; enacted as our Product Liability Act, is limited expressly to conduct of third parties. John Anderson, who served on the governor's product liability task force, testified before the judiciary committee in support of the 1979 bill: "Last year . . . [the product modification section was] basically framed in terms of [an] absolute [defense]. This year, our approach is quite different and it's modeled very much after the United States Commerce Department document. With respect to modification, it's a very qualified and conditioned defense." Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1979 Sess., p. 569. Section 110 of the draft act provides: "(a) A product seller shall not be liable for harm that would not have occurred but for the fact that his product was altered or modified by a third party unless: (1) The alteration or modification was in accordance with the product seller's instructions or specifications; (2) The alteration or modification was made with the express consent of the product seller; or (3) The alteration or modification was the result of conduct that reasonably should have been anticipated by the product seller, (b) For the purposes of this section, alteration or modification includes changes in the design, formula, function or use of the product from that originally designed, tested or intended by the product seller. It includes failure to observe routine care and maintenance, but does not include ordinary wear and tear. " (Emphasis added.) 44 Fed. Reg. 3000. Except for the omission of the emphasized language, General Statutes § 52-572p is identical to § 110. Section 112 of the model act, on which the defendant claims that General Statutes § 52-572p was based, contains language substantially different than that of § 110 of the draft act. Section 112 provides in relevant part: "(D) Alteration or Modification of a Product. (1) 'Alteration or modification' occurs when a person or entity other than the product seller changes the design, construction, or formula of the product, or changes or removes warnings or instructions that accompanied or were displayed on the product. . (2) When the product seller proves, by a preponderance of the evidence, that an alteration or modification of the product by the claimant, or by a party other than the claimant or the product seller, has caused the claimant's harm, the claimant's damages shall be subject to reduction or apportionment to the extent that the alteration or modification was a cause of the harm. Under this Subsection, the trier of fact may determine that the harm arose solely because of the product alteration or modification." (Emphasis added.) 44 Fed. Reg. 62737. The emphasized language demonstrates a clear intent to reach the conduct of a claimant, and to apply the principle of comparative fault to the conduct of a claimant. Therefore, § 112 of the model act bears little resemblance to § 52-572p. The commentary to the draft act explains the considerations underlying the rule of § 110 that the product seller is not liable when a third party's alterations or modifications of the product cause the plaintiffs injury. To impose liability in such cases would "border on absolute liability" and would "fail to place the incentive for risk prevention on the party or parties who have engaged in the wrongful conduct." 44 Fed. Reg. 3010 (1979). General Statutes § 52-572o provides: "(a) In any claim under sections 52-240a, 52-240b, 52-572m to 52-572r, inclusive, or 52-577a, the comparative responsibility of, or attributed to, the claimant, shall not bar recovery but shall dimmish the award of compensatory damages proportionately, according to the measure of responsibility attributed to the claimant. "(b) In any claim involving comparative responsibility, the court may instruct the jury to give answers to special interrogatories, or if there is no jury, the court may make its own findings, indicating (1) the amount of damages each claimant would receive if comparative responsibility were disregarded, and (2) the percentage of responsibility allocated to each party, including the claimant, as compared with the combined responsibility of all parties to the action. For this purpose, the court may decide that it is appropriate to treat two or more persons as a single party. "(c) In determining the percentage of responsibility, the trier of fact shall consider, on a comparative basis, both the nature and quality of the conduct of the party. "(d) The court shall determine the award for each claimant according to these findings and shall enter judgment against parties liable on the basis of the common law joint and several liability of joint tortfeasors. The judgment shall also specify the proportionate amount of damages allocated against each party liable, according to the percentage of responsibility established for such party. "(e) If a judgment has been rendered, any action for contribution must be brought within one year after the judgment becomes final. If no judgment has been rendered, the person bringing the action for contribution either must have (1) discharged by payment the common liability within the period of the statute of limitations applicable to the right of action of the claimant against him and commenced the action for contribution within one year after payment, or (2) agreed while action was pending to discharge the common liability and, within one year after the agreement, have paid the liability and brought an action for contribution." Representative John A. Berman, in the debate in the House of Representatives regarding the act, pointed out that under pure comparative responsibility, "if an individual is 10 percent at fault, then he would recover 90 percent, and . if he were 60 percent at fault, he would recover 40 percent. If he were 100 percent at fault, of course, he would recover nothing under this proposal." 22 H.R. Proc., Pt. 20, 1979 Sess., p. 7021. Section 111 of the draft act provides the following: "(a) General Rule. In any claim under this Act, the comparative responsibility of, or attributed to, the claimant, shall not bar recovery but shall diminish the award of compensatory damages proportionately, according to the measure of responsibility attributed to the claimant. "(b) Apportionment of Damages. In any claim involving comparative responsibility, the court, unless otherwise requested by all parties, shall instruct the jury to give answers to special interrogatories, or the court shall make its own findings if there is no jury, indicating— "(1) The amount of damages each claimant would have received if comparative responsibility were disregarded, and "(2) The percentage of responsibility allocated to each party, including the claimant, as compared with the combined responsibility of all parties to the action. For this purpose, the court may decide that it is appropriate to treat two or more persons as a single party. "(3) In determining the percentage of responsibility, the trier of fact shall consider, on a comparative basis, both the nature and quality of the conduct of the party. "(4) The court shall determine the award for each claimant according to these findings and shall enter judgment against parties liable on the basis of the common law joint and several liability of joint tortfeasors. The judgment shall also specify the proportionate amount of damages allocated against each party liable, according to the percentage of responsibility established for that party. "(5) Upon a motion made not later than one year after judgment is entered, the court shall determine whether all or part of a party's share of the obligation is uncollectible from that party, and shall reallocate any uncollectible amount among the other parties, including a claimant at fault, according to their respective percentages of fault. A party whose liability is reallocated is still to be subject to contribution and to any continuing liability to the claimant on the judgment. "(c) Conduct Affecting Claimant's Responsibility. "(1) Failure to Discover a Defective Condition. "(i) A claimant is not required to have inspected the product for defective condition. Failure to have done so does not render the claimant responsible for the harm caused. "(ii) Where a claimant using a product is injured by a defective condition that would have been apparent to an ordinary prudent person, the claimant's damages are subject to reduction according to the principles of subsections (a) and (b). "(2) Using a Product With a Known Defective Condition. "(i) A claimant who knew about a product's defective condition, but who voluntarily and unreasonably used the product, shall be held solely responsible for injuries caused by that defective condition. "(ii) In circumstances where a claimant knew about a product's defective condition and voluntarily used the product, but where the reasonableness of doing so was uncertain, claimant's damages shall be subject to reduction according to the principles of subsections (a) and (b). "(3) Misuse of a Product. ' '(i) Where a claimant has misused a product by using it in a manner that the product seller could not have reasonably anticipated, the claimant's damages shall be reduced according to the principles of subsections (a) and (b). "(ii) Where the injury would not have occurred but for the misuse defined in subsection (3) (i), the product is not defective for purposes of liability under this Act." General Statutes § 52-5721 provides: "In causes of action based on strict tort liability, contributory negligence or comparative negligence shall not be a bar to recovery. The provisions of this section shall apply to all actions pending on or brought after June 7,1977, claiming strict tort liability notwithstanding the date on which the cause of action accrued. Nothing in this section shall be construed as barring the defense of misuse of the product or the defense of knowingly using the product in a defective condition in an action based on strict tort liability."

Per Curiam. The judgment is affirmed.

Per Curiam. The judgment is affirmed.

Daly, J. The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of Gen eral Statutes § 53a-70, assault in the third degree in violation of General Statutes § 53a-61, threatening in violation of General Statutes § 53a-62 and unlawful restraint in the first degree in violation of General Statutes § 53a-95. He claims that the trial court improperly (1) allowed the state to make a substantive amendment to the information after the commencement of trial, (2) admitted extrinsic evidence to impeach the defendant on a collateral matter, and (3) admitted prejudicial hearsay testimony. The jury reasonably could have found the following facts. On July 16, 1988, the victim went to the Club Car, a Hartford nightclub, to meet some friends. At approximately 1:30 a.m. on July 17, she left the club by herself and walked to her car. As she was walking to her car, the defendant approached her and began a conversation. The defendant identified himself and asked if she would give him a ride to his house in Manchester. The victim initially refused but then changed her mind after the defendant emptied his pockets to show he did not have a weapon. The victim examined the defendant's driver's license after he emptied his pockets. She then drove the defendant to Manchester and stopped at a school parking lot near his apartment. According to the victim's testimony, when they arrived at the school parking lot, the defendant grabbed her and turned off her car's engine. The defendant told the victim to remove her pants but she attempted to struggle with him. She was able to restart the car but again he removed the keys and threatened her with death if she kept resisting. During the course of the struggle, the defendant punched the victim in the head and she bit him on the forearm. The defendant then sexually assaulted the victim and forced her to engage in sexual intercourse. After intercourse, the victim drove the. car, following the defendant's directions, toward his apartment. While driving, the victim saw a house with its lights on and drove into the driveway. She grabbed her keys and fled from the car to a side door of the house. She began to bang on the door and saw that the defendant had exited her car. The defendant ran up the street and the victim returned to her car. As she drove toward a hospital, the victim encountered a Manchester police officer and reported that she had been raped. After meeting with the victim and further investigation, the police went to the defendant's apartment. The police officers told the defendant he was under investigation for sexual assault. The defendant denied any knowledge of a sexual assault and stated that he had been out with his girl friend all night. The defendant's girl friend, Virginia Cross, was also at his apartment when the police arrived. The police arrested the defendant and took him into custody. The defendant telephoned Cross from the police station. A police officer who overheard the defendant's conversation with Cross testified that he stated, "You are driving a nail into my coffin." According to this officer, the defendant also told Cross to change her story and tell the police that she did not remember anything because she suffered from blackouts. The police photographed a small bitemark on the defendant's forearm. The defendant testified that after spending the evening with Cross at a club in Hartford, he became separated from her as the club was closing. The defendant stated that he and Cross were getting along very well and had not been fighting that evening. The defendant began to look for Cross outside of the club and during this search he met the victim. According to the defendant's version, the victim offered to drive him home and during the drive placed her hand on his knee. At the school parking lot, they kissed and then had consensual sexual intercourse. After this, the victim asked if she could go to the defendant's apartment with him. The defendant refused because his girl friend was at his apartment. The defendant told the victim that "having sex in a parking lot is not a way to start a relationship for the future." The victim then drove the defendant to a house whereupon she exited the car and walked into the house. The defendant exited the car and took the victim's pants and nylons with him. He deposited the defendant's pants and nylons in a dumpster near his apartment. I The defendant first claims that the trial court improperly allowed the state to amend the information after the completion of jury selection. The defendant argues that the amended information charged offenses different from the original information in violation of Practice Book § 624. The following facts are relevant to the disposition of this claim. Before the commencement of jury selection, the third count of the state's information charged the defendant with assault in the third degree in violation of General Statutes § 53a-61 (a) (2). The fourth count of the state's information charged the defend ant with threatening in violation of General Statutes § 53a-62 (a) (3). After jury selection, the trial court clerk read the information to the jury. After this reading, the assistant state's attorney, outside the presence of the jury stated that he discovered for the first time that the third and fourth counts of the information were incorrect and claimed that a drafting error resulted in the wrong subdivisions being cited in the original information. He stated that the third count should have alleged a violation of subdivision (1) instead of subdivision (2) of § 53a-61 (a), and the fourth count should have alleged a violation of subdivision (1) instead of subdivision (3) of § 53a-62 (a). The defendant, relying on Practice Book § 624, objected to the state's attempt to amend the original information. The defendant argued that the state could amend the information after the commencement of trial only if the amendment substituted a lesser included offense. He argued that the amendment changed the nature, elements and proof as to both the assault and threatening counts. According to the defendant's argument, the change in subdivisions of the assault count resulted in a clearly different substantive offense's being charged. The state argued that the amendment did not add extra or different charges and that the defendant faced the same penalty under the original and amended information. The defendant focused on the change related to the third count concerning assault in the third degree because the state originally had to prove serious physical injury and, under the amendment, had to prove only physical injury. The defendant argued that the amendment changed the theory of the case and prejudiced his defense because he lacked proper notice of the new charges. The trial court allowed the amendment, concluding that it did not amount to a substantive change because the offenses remained the same and the amend ment altered only the manner in which the offense was committed. The trial court asked defense counsel whether he needed any additional time to address the changes in the amendment. Defense counsel felt that he did not need additional time at that point but stated that he would inform the court if the amendment resulted in a time problem. Because this amendment occurred after the jury was selected, the trial had commenced and Practice Book § 624 governed the amendment. State v. Cole, 8 Conn. App. 545, 551-52, 513 A.2d 752 (1986). After the commencement of trial, the state can amend the information without the defendant's consent as long as "no additional or different offense is charged and no substantive rights of the defendant would be prejudiced." Practice Book § 624. "The state's right to amend must be limited to substitutions that do not charge the defendant with an additional or different offense because the defendant has a constitutional right to fair notice, prior to the commencement of trial, of the charges against which he must defend himself. See U. S. Const., amend. VI; Conn. Const., art. I, § 8." State v. Jacobowitz, 182 Conn. 585, 590, 438 A.2d 792 (1981). "Unless the original and the amended informations charge the defendant with the same crime, as was the case in State v. Wallace, 181 Conn. 237, 435 A.2d 20 (1980), amendment is permissible only to charge a lesser included offense." Id., 590-91. Under the state's original information, it was required to prove that the defendant acted recklessly and thereby caused a serious physical injury to another person to secure a conviction based on § 53a-61 (a) (2). Under the amended information, to secure a conviction based on § 53a-61 (a) (1), the state had to prove that the defendant intentionally caused another to suffer a physical injury. Although both subdivisions (1) and (2) of subsection (a) are generally classified as the crime of assault in the third degree, we conclude that, for purposes of Practice Book § 624 they are not the same offense. Each subdivision within § 53a-61 (a) requires proof of different mental states as well as different resulting physical injuries from the defendant's conduct. The physical injury element of § 53a-61 (a) (1) requires proof of "impairment of physical condition or pain." See General Statutes § 53a-3 (3). In contrast, the serious physical injury element of § 53a-61 (a) (2) is defined as "physical injury which creates a substantial serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ." General Statutes § 53a-3 (4). The state's reliance on State v. Secore, 194 Conn. 692, 481 A.2d 741 (1984), State v. Wallace, supra, and (State v. Sullivan, 11 Conn. App. 80, 525 A.2d 1353 (1987), to support its claim that the amendment in this case did not charge an additional or different offense is misplaced because the statutes in those cases are distinguishable from this case. In Wallace, the defendant was initially charged with robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). After discovering that it did not have the actual weapon used in the robbery, the state was allowed to amend the original information to charge the defendant with a violation of § 53a-134 (a) (4) instead of § 53a-134 (a) (2). State v. Wallace, supra, 239. The amendment was necessary because subdivision (2) required proof that the defendant was armed with a deadly weapon while subdivision (4) required proof that the defendant threatened the use of what he represented by his actions to be a firearm. The statutory subdivisions (2) and (4) for robbery in the first degree under General Statutes § 53a-134 (a), unlike § 53a-61 and 53a-62, do not contain different mental states and different resulting harms. Our Supreme Court also noted that the defendant in State v. Wallace, supra, was not prejudiced by the amendment because he raised an alibi defense and therefore did not dispute whether the robbery was committed by the use of a deadly weapon or by the threat of the use of a firearm. State v. Wallace, supra, does not control in this case because the amendment there did not charge the defendant with a different crime and therefore did not violate Practice Book § 624. Here, the amendment charged the defendant with two different offenses in violation of Practice Book § 624 and violated the defendant's constitutional right to fair notice. In State v. Secore, supra, 698, our Supreme Court found "that the language of [General Statutes] § 53a-70 divides the statute, not into crimes but into two methods of committing the same crime; see State v. Wallace, 181 Conn. 237, 239, 435 A.2d 20 (1980) . . . ." On the basis of that interpretation, the substitute information charging the defendant in Secore with a sexual assault " 'by the threat of use of force' " rather than " 'by the use of force' " as charged in the indictment did not charge the defendant with a different crime. Again, the substitute information in State v. Secore, supra, unlike the amended information in this case, did not require a proof of a different mental state and of a different resulting harm. The subdivisions in § 53a-61 (a) and 53a-62 (a) have different mental states and different resulting harms and are thus distinguishable from § 53a-70 and 53a-134. The statutory classification for risk of injury to a child in violation of General Statutes § 53-21 is also different from § 53a-61 and § 53a-62. In State v. Sullivan, supra, the state initially charged the defendant with impairing the morals of a child in violation of the first part of § 53-21. The amended information sought to charge the defendant with both parts of § 53-21 instead of only the first part. This court upheld the trial court's granting of the amendment after commencement of trial because it did not charge the defendant with a different or additional offense. A comparison of § 53-21 to § 53a-61 and 53a-62 reveals that the latter statutes' subdivisions are not merely different methods of committing the same crime. Each subdivision under § 53a-61 (a) and 53a-62 (a) has different results and different mental states. Here, the amendment charged the defendant with different offenses in violation of Practice Book § 624. Because the amended information charged the defendant with different crimes that did not constitute lesser included offenses of the original charges, the state was not permitted to amend the information in this case. State v. Jacobowitz, supra, 590-91. The judgment of conviction rendered on the third and fourth counts must be set aside because of the improper amendment and judgment of not guilty is directed. Id., 593. We must next determine whether the improper amendment concerning the assault in the third degree and the threatening conviction contributed to the defendant's convictions on the remaining three counts. State v. Ignatowski, 10 Conn. App. 709, 715, 525 A.2d 542, cert. denied, 204 Conn. 812, 528 A.2d 1157 (1987). Because the improper amendment violated the defendant's constitutional right to notice of the charges against him, the state must show that the improper amendment was harmless beyond a reasonable doubt as to the remaining counts. Id. We conclude that the state has met its burden concerning the improper amendment's effect on the three remaining counts. In State v. Ignatowski, supra, 712, the defendant was charged in the first information with sexual assault in a cohabiting relationship in violation of General Statutes § 53a-70b (b), and assault in the third degree. The state's second information charged the defendant with one count of assault in the third degree and three counts of sexual assault in the first degree in violation of § 53a-70 (a). Before jury selection, the defendant raised the affirmative defense of cohabitation pursuant to General Statutes § 53a-67 (b) to the three counts of sexual assault in the second information. After commencement of the trial, the state amended the second information to include three additional charges of sexual assault in a cohabiting relationship. The defendant was found guilty on both counts under the first information and all counts in the second information except for the three additional counts of sexual assault in a cohabiting relationship of which the defendant was acquitted. We found that the trial court's granting of the amendment to the second information concerning the three additional counts of sexual assault in a cohabiting relationship violated Practice Book § 624. Id., 714. The state argued that the improper amendment was harmless error because the defendant was acquitted of the three additional counts that were improperly added. Id., 715. We found that although the improper amendment did not affect the verdicts under the first information and the assault conviction in the second information, it did affect the guilty verdicts related to the three counts of sexual assault in violation of § 53a-70 (a). The error in that case was not harmless beyond a reasonable doubt because it "unfairly prejudiced the defendant's ability to present a statutory affirmative defense to the three charges of sexual assault in the first degree." Id., 716. In Ignatowski, the improper amendment forced the defendant to choose between not raising the affirmative defense of cohabitation or raising that defense with the risk of proving an element of the improperly added charges of sexual assault in a cohabiting relationship. Id. The defendant's failure to pursue the affirmative defense of cohabitation due to the improper amendment deprived him of a defense to the three counts of sexual assault in the first degree. This prejudiced the defendant and resulted in an unfair trial. Id. The improper amendment to the second information did not contribute to the defendant's conviction of assault in the third degree in that information. Therefore, it was harmless beyond a reasonable doubt as to that conviction. Id., 717. In the present case, the amendment changing the charges related to the assault in the third degree and the threatening count did not prevent the defendant from raising a defense to the remaining counts of sexual assault in the first degree and unlawful restraint. The defendant's claim that the charges in the improper amendment "formed the very foundation" of the remaining three counts is without merit. The elements for a conviction under § 53a-70 and 53a-95 are separate and distinct from the elements of the amended information. The amended information did not force the defendant to alter his defense to the remaining counts of sexual assault and unlawful restraint. The defendant also argues that the amendment contributed to his conviction on the remaining counts because it removed the contradiction in the original charges concerning allegations of recklessness in the violations of § 53a-61 (a) (2) and 53a-62 (a) (3) and allegations of intentional action in the remaining counts. According to the defendant, the jury would not have been able to reconcile the difference between the allegation of reckless and intentional conduct by the defendant. Our Supreme Court has noted that even though intentional conduct and reckless conduct have different meanings, "this does not mean that the same factual circumstances cannot support a jury finding of either intentionality or recklessness." State v. Giguere, 184 Conn. 400, 403-404, 439 A.2d 1040 (1981). The jury could have found that although the defendant was not guilty of reckless conduct in assaulting and threatening the victim, he did intentionally sexually assault and unlawfully restrain her. There was not such a clear contradiction between the original counts even though each charge consisted of different elements. The improper amendment did not contribute to the defendant's conviction of the three remaining counts. The trial court's improper amendment was harmless beyond a reasonable doubt as to the remaining convictions. II The defendant next claims that the trial court improperly admitted evidence of a collateral matter to impeach the defendant. The following facts are relevant to this claim. The defendant testified that he went with Cross first to the Club Car and then to City Lights, both located in Hartford. He was with Cross the entire time at City Lights except when they went to the restrooms. According to his testimony, he and Cross were getting along and had not had any arguments that evening. The defendant expected Cross to come to his apartment after the bar closed. During cross-examination, the defendant stated that although he was with Cross at the Club Car, he did have a conversation with a woman named Denise in the absence of his girl friend. A cocktail napkin with a phone number and the name Denise written on it was discovered in the defendant's pants pocket the night of his arrest. When asked how he got Denise's phone number the defendant stated that "[s]he might have asked me if I wanted it." The defendant could not remember whether he actually called Denise but thought he did not call her. Upon further questioning, the defendant did not believe that he requested Denise's number because he was with Cross. The defendant later stated that he did not call Denise but that she might have called him. The state then sought to call Denise Burns to the stand. The defendant objected and, after oral argument on the matter, the court allowed her to testify. The court rejected the defendant's argument that Burns' testimony constituted an attempt by the state to impeach the defendant concerning a collateral matter. The court found that this testimony was not. collateral because of the difference between the victim's testimony concerning how she met the defendant and defendant's testimony of their meeting. The testimony by Burns indicated that the defendant approached her and thus also contradicted the defendant's claim of devotion to his girl friend, Cross. The court found that because the defendant's encounter with Burns had occurred around the time of the encounter with the victim that Burns' testimony went to a basic issue in the case. The defendant took exception to the court's ruling. Burns testified that while at the Club Car she spoke with the defendant for approximately ten to fifteen minutes. She stated that because she did not offer her telephone number to the defendant, he must have asked for it. She received two or three telephone calls from a man identifying himself as the defendant approximately one month after meeting the defendant at the club. It is well established that a witness' testimony on a collateral matter cannot be impeached through the admission of extrinsic evidence. State v. Carbone, 172 Conn. 242, 262, 874 A.2d 215, cert. denied, 431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977). "A contradiction is not collateral if it is relevant to a material issue in the case apart from its tendency to contradict a witness." State v. McCarthy, 197 Conn. 166, 176, 496 A.2d 190 (1985). If we assume that the admission of Burns' testimony concerned a collateral matter, the defendant would have to establish that the trial court's action was harmful because this claim does not involve the violation of a constitutional right. State v. Moody, 214 Conn. 616, 629, 573 A.2d 716 (1990). A new trial would be necessary if the admission of Bums' testimony "was so prejudicial to the rights of the defendant as to deprive him of a fair trial . . . ." State v. Ruth, 181 Conn. 187, 196, 435 A.2d 3 (1980). The defendant has failed to demonstrate that "it is more probable than not" that the admission of Burns' testimony affected the jury's verdict. State v. Moody, supra. The defendant correctly argues that his credibility and the victim's credibility were very important because of the nature of this case. Burns did not accuse the defendant of any improper conduct or state that he forced himself on her. Her testimony was not inflammatory or confusing such that the jury would treat the defendant's encounter with Burns and his encounter with the victim the same. The defendant's failure to obtain a cautionary instruction as to the use of Burns' testimony weakens his claim of prejudice from the admission of her testimony. See State v. Conroy, 194 Conn. 623, 628, 484 A.2d 448 (1984). On the basis of our review of the evidence, we are unable to conclude that the admission of Burns' testimony deprived the defendant of a fair trial. Thus, any error concerning the admission of Burns' testimony was harmless. III The defendant next claims that the court improperly admitted prejudicial hearsay testimony into evidence. We disagree. The following facts are pertinent to the resolution of this claim. The state offered into evidence a sworn police statement made by Cross. The statement was offered without objection as a past recollection recorded because Cross could not remember any details about the night of the defendant's arrest. Cross stated that at the time she made her statement she had "too much alcohol and very little sleep." Cross also testified that she had experienced dizzy spells and blackouts. After the state presented its case-in-chief, the defendant called Manchester police officer William Daley to testify about the circumstances surrounding Cross' statement. During the defendant's direct examination of Daley, the officer stated that Cross had insisted that certain facts about the evening not be included with her sworn police statement. The defendant did not inquire as to what Cross wanted excluded from her statement. During cross-examination, the state asked Daley to relate what Cross wanted kept out of her statement. The defendant objected claiming that Daley's answer constituted hearsay. The state responded that the defendant opened the door by calling Daley and asking him about the circumstances surrounding the report. The court held a hearing outside the jury's presence concerning Daley's testimony about the omissions from Cross' police statement. Daley stated that at the time of her statement Cross did not want to include any reference to the fact that she had been drinking heavily that evening. Cross was concerned about drunk driving because in her statement she admitted to driving the defendant to East Hartford to pick up his car after she returned from Hartford. Cross also did not want to mention that she and the defendant had an intense argument that evening that resulted in the defendant's leaving the club without her. Cross could not recall why she was arguing with the defendant. Daley further testified that his memory of the events surrounding Cross' statement differed from his written report. He admitted that he failed to read the report thoroughly after writing it at the end of his shift. His report did not include Cross' statement about having an intense argument with the defendant. The report also stated that Cross did not "remember having a fight with Tanzella but it is very unusual that she would leave with him or vice versa." Daley stated that he mistakenly typed "with" instead of "without" in his report. According to Daley's recollection, Cross thought that the reference to the argument might get the defendant in trouble. The state argued that Cross' statements were admissible to show her state of mind at the time of her statement, or as a prior inconsistent statement or under the residual exception to the hearsay rule. The defendant argued that Cross' statements were hearsay and not admissible under any exception. The defendant also argued that Cross was not unavailable because she had already testified on behalf of the state. The state had brought Cross from California but she had returned after testifying for the state. The state argued that Cross' statements were reliable because they were against her interest as well as that of the defendant, her boyfriend at the time of her statement. The court ruled that Cross' statements were relevant to the defendant's opportunity to commit the crime, a material fact in the case, and that the statements also fit within the state of mind exception to the hearsay rule because the statements revealed Cross' state of mind at the time she made her statement. The court also admitted the statements by Cross under the residual exception to the hearsay rule. Cross' statements were found to be reliable and necessary to the resolution of the case. The court further found that, in the interests of justice, these statements should be admitted for the truth of the matter. The defendant took exception to the court's ruling. The defendant later entered Daley's written report into evidence. "A statement made out of court which is offered to establish the truth of the facts contained in the statement is hearsay." State v. Packard, 184 Conn. 258, 274, 439 A.2d 983 (1981). Cross' statements to Daley that were not included in his report fit within the definition of hearsay. "Though generally inadmissible, hearsay may be admitted if there is a sufficient probability that the statement is reliable and trustworthy, if the evidence contained in the statement is necessary to resolution of the case, and if the trial court concludes that admitting the statement is in the interests of justice. 5 Wigmore, Evidence (Chadbourn Rev. 1974) § 1422, pp. 253-54." State v. Stepney, 191 Conn. 233, 249-50, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). It must be first determined "whether there was a reasonable necessity" for the admission of Cross' statement to Daley. State v. Sharpe, 195 Conn. 651, 664, 491 A.2d 345 (1985). Our Supreme Court adopted the Wigmore definition of necessity which is satisfied by a showing that the facts contained in the hearsay statement "may be lost, either because the declarant is dead or otherwise unavailable, or because the assertion is of such a nature that evidence of the same value cannot be obtained from the same or other sources." State v. Sharpe, supra, 665. The defendant, relying on In re Jason S., 9 Conn. App. 98, 516 A.2d 1352 (1986), argues that since Cross had already testified and was not shown to be unavailable, there was no reasonable neces sity to admit her hearsay statements made to Daley. In re Jason S. was a parental rights termination case where statements by the abused child made out-of-court to school personnel and social workers about physical abuse were offered into evidence. The hearsay statements of Jason failed to establish the necessity requirement of State v. Sharpe, supra, because Jason had already testified about who abused him and how he was abused. There was no need for the admission of Jason's hearsay statements about physical abuse because "[t]he facts contained therein could not have been lost because the declarant recounted them to the court himself." In re Jason S., supra, 106. In the present case, Cross did not testify about any argument with the defendant or that he left before her. She did testify that she had been drinking heavily that evening. Daley's testimony was relevant to show that at the time of her statement Cross selectively chose to omit certain facts from it. Cross' omissions from her statement contradict the inference that because she was drinking and lacked sleep she did not accurately recall what occurred that evening. Her sworn police statement was entered into evidence because of her inability to remember what occurred at the time of this incident. Cross' out-of-court assertion that she had argued with the defendant and that he had left before she left would have been lost because of her inability to remember it had it not been introduced through Daley's testimony. The admission of Cross' hearsay statements was necessary in this case because of her inability to remember any details about this incident. Cross testified, "I did not think I would be coming in here, so I have not been repeating the events of the evening since then. So I have no idea other than what is on my statement as to what took place." This indicates that even had Cross been recalled to testify she would not have been able to remember her statements to Daley about omitting certain facts from her sworn statement. Therefore, Cross' availability is irrelevant because her statements could not have been obtained from the same or another source besides Daley. The court correctly concluded that the state has satisfied the reasonable necessity element as explained in State v. Sharpe, supra. Thus, this case is distinguishable from In re Jason S., supra, because evidence of the same value could not have been obtained from any other source besides Daley. We must next determine whether Cross' hearsay statements were "supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions." State v. Sharpe, supra, 664. When making her statement, Cross recognized that any reference to her heavy drinking could subject her to criminal liability because she drove home from the club and also drove from East Hartford after she brought the defendant to get his car. She realized that this was against her penal interest. The statement about having an argument with the defendant was not against Cross' interest. Cross recognized that this could be damaging to the defendant who was her boyfriend at the time of the statement to Daley. These statements were made just after this incident and concerned matters within Cross' personal knowledge. Cross' statements contained sufficient indicia of reliability and trustworthiness to satisfy this element of the residual of hearsay exception. "The court has broad discretion to determine that hearsay evidence is nonetheless admissible because it is clearly necessary and relevant to the resolution of issues." State v. Tyson, 23 Conn. App. 28, 35, 579 A.2d 1083 (1990). The fact that the defendant left the club before Cross was relevant to the resolution of how much time the defendant had to commit the sexual assault. At that point, the defendant had not testified about his involvement with the victim. According to Cross' sworn statement, she was with the defendant until last call at the club which occurred at approximately 1:30 a.m. After failing to locate the defendant, she drove to his apartment and found him lying in bed at approximately 2 a.m. Cross' statement about an argument and the defendant's leaving without her shows that they could have been separated for more than thirty minutes. The trial court did not abuse its discretion when it admitted Cross' hearsay statements because they were necessary to the resolution of issues in this case. The court correctly admitted Cross' statements under the residual hearsay exception. The discrepancy between Daley's memory and his written report goes to the weight accorded to the testimony and not to its admissibility concerning the reliability of the hearsay statements. On the basis of this finding, we need not address whether Cross' statements were also admissible under the state of mind hearsay exception. Furthermore, the state argued that, because the defendant in his direct examination of Daley brought out the fact that Cross kept certain facts out of her statement, it was entitled to inquire about these omissions. "Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have 'opened the door' to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence." (Citations omitted.) State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986). The defendant called Daley to challenge Cross' sworn statement about her recollection of this incident. The sworn police statement by Cross had been admitted as a prior recorded recollection because of her inability to remember events that occurred during the evening of the sexual assault. Daley's response, elicited by the defendant, that Cross wanted certain facts kept out of her sworn statement indicated that it might not be complete and accurate. The validity of Cross' sworn statement was called into question by Daley's response. The state had to inquire about the omitted facts to show how they affected the validity of Cross' sworn statement. Therefore, the court did not abuse its discretion by allowing Daley to testify about Cross' hearsay statements. Id. IV We refuse to review the defendant's final claim that the assistant state's attorney's failure to disclose to the defendant that there was a discrepancy between Daley's written report and his actual recollection of what Cross said during her statement violated the constitutional, statutory and Practice Book rules concerning the disclosure of exculpatory information. The defendant did not include this claim in his statement of issues of his brief. The defendant's attempt to develop this claim in a single footnote violates Practice Book § 4065 (d) which requires that a brief shall contain "[t]he argument, divided under appropriate headings into as many parts as there are points to be presented . . . ." See State v. Reddick, 15 Conn. App. 342, 343, 545 A.2d 1109, cert. denied, 209 Conn. 819, 551 A.2d 758 (1988). In State v. Reddick, supra, we refused to review three of the defendant's claims that although included in his preliminary statement of issues were argued by way of footnotes. An improperly briefed issue is considered abandoned. State v. Gaines, 196 Conn. 395, 397-98 n.2, 493 A.2d 209 (1985). The defendant's clear violation of the rules of practice warrants our refusal to review this claim. The judgment of conviction of assault in the third degree in violation of General Statutes § 53a-61 (a) (1) and threatening in violation of General Statutes § 53a-62 (a) (1) is reversed and the case is remanded with direction to render judgment of not guilty of those charges. The judgment of conviction on the three remaining counts are affirmed. In this opinion Freedman, J., concurred. "[General Statutes] Sec. 53a-61. assault in the third degree: class A misdemeanor, (a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon. . . ." "[General Statutes] Sec. 53a-62. threatening: class a misdemeanor. (a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury, or (2) he threatens to commit any crime of violence with the intent to terrorize another, to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or (3) he threatens to commit such crime in reckless disregard of the risk of causing such terror or inconvenience. . . ." See footnote 1, supra. General Statutes § 53-21 provides: "Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both."

O'Connell, J. The defendants appeal from a judgment for $1484 for the plaintiff, after a court trial. The defendants claim that the trial court abused its discretion in (1) finding that there was a legally enforceable oral lease between the parties, (2) allowing testimony about lost prospective profits, (3) finding lost profits of $24,000, and (4) failing to grant the defendants' motion for judgment at the conclusion of the plaintiff's case. We affirm the judgment of the trial court. This action arises from a breach of an alleged oral lease between the plaintiff and the defendants. The plaintiff was interested in moving its candle manufacturing business from New York state. Among the new locations considered was the defendants' property in Torrington. Henry Groupe, president of the plaintiff corporation, and the defendants conferred in person and by telephone on several occasions concerning a written lease. Repair of the roof and installation of a sanitary sewer connection by the defendants were important parts of these negotiations. As a result of these negotiations, the defendants allowed the plaintiff to move into the premises in May, 1986, at an agreed annual rent of $14,000. The defendants failed to repair the roof or to install the necessary sanitary sewer connections. Because the defendants failed in their roof and sewer obligations, the plaintiff was unable to commence candlemaking operations and sustained lost profits. The plaintiff remained in possession for one year until evicted by the defendants in April, 1987. The plaintiff made no rental payments during the one year period of its occupancy. The plaintiff brought this action claiming damages for loss of profits allegedly caused by the defendants' breach of the terms of the oral lease. The defendant filed a counterclaim to recover unpaid rent. The trial court found that the plaintiff had lost $24,000 in profits, but found that 40 percent of the plaintiff's loss was caused by its failure to vacate the premises sooner and, therefore, reduced the loss to $14,400. After subtracting another $12,826 for the plaintiff's failure to pay rent for the eleven month period of occupancy, the trial court rendered a net judgment in favor of the plaintiff for $1484. The defendants appeal. The threshold issue concerns the trial court's implicit finding that the parties entered into an enforceable oral lease. We must determine first whether a lease existed and then whether that lease is enforceable. The defendant claims that the trial court's finding that an oral lease existed is clearly erroneous because (1) the plaintiff faded to prove that the parties intended to be bound before the written lease was executed and (2) the oral agreement is void under our statute of frauds. General Statutes § 52-550. A lease is a contract and questions concerning it are determined in accordance with usual contract law. Robinson v. Weitz, 171 Conn. 545, 551, 370 A.2d 1066 (1976). "Whether a contract exists is a question of fact or a mixed question of fact and law for the court to determine. See Gianetti v. Norwalk Hospital, 211 Conn. 51, 58 n.6, 557 A.2d 1249 (1989). The existence and terms of a contract are determined from the intent of the parties. See Steeltech Building Products, Inc. v. Edward Sutt Associates, Inc., 18 Conn. App. 469, 471, 559 A.2d 228 (1989). 'The parties' intentions manifested by their acts and words are essential to the court's determination of whether a contract was entered into and what its terms were.' Id., 471-72. It is within the province of the trier to draw reasonable and logical inferences from the facts proven. B. Holden & J. Daly, Connecticut Evidence § 64, p. 417." Wickes Mfg. Co. v. Currier Electric Co., 25 Conn. App. 751, 756-57, 596 A.2d 1331 (1991). Whether the parties intended to be bound without signing a formal written contract is an inference of fact for the trial court that we will not review unless we find that its conclusion is unreasonable. Steeltech Building Products, Inc. v. Edward Sutt Associates, Inc., supra, 472. We cannot retry the facts or substitute our judgment for that of the trial court. Arbour v. McCollough, 186 Conn. 280, 285-86, 440 A.2d 980 (1982). Groupe testified that the rental terms of the oral lease were as follows: annual rent of $14,000; a boiler, heating system, a new electrical service and gas service would be installed, and an office and proper sanitary connections for the employees' toilets would be provided. The trial court's articulated memorandum of decision finds that the parties orally agreed to these terms and that no written lease was executed. The memorandum was silent as to the duration of the lease, but the record shows that Groupe testified that the duration of the oral lease was three years. The court was free to disregard conflicting evidence. Lemmon v. Paterson Construction Co., 137 Conn. 158, 162, 75 A.2d 385 (1950); Milano v. Sayers, 6 Conn. App. 491, 497-98, 506 A.2d 162, cert. denied, 199 Conn. 810, 508 A.2d 771 (1986). This court construes the evidence in the light most favorable to sustaining the trial court's verdict unless it is unsupported by the evidence and record as a whole. Kasper v. Anderson, 5 Conn. App. 358, 361, 498 A.2d 132, cert. denied, 197 Conn. 818, 501 A.2d 388 (1985). Our examination of the record satisfies us that the trial court's determination that an oral contract existed was a reasonable conclusion supported by the evidence. Thus, it follows that the trial court did not abuse its discretion in refusing to grant the defendants' motion for judgment at the close of the plaintiff's case. We turn now to the defendants' claim that the three year oral lease described by Groupe cannot be enforced because it violates the statute of frauds provision concerning agreements that are not to be performed within one year from their making. We are confronted with the classic issue of the rights of the parties when a tenant takes possession under an oral lease that is invalid because of the statute of frauds. See 6 A.L.R.2d 685, Tenancy Under Void Lease § 1-19; 49 Am. Jur. 2d, Landlord and Tenant § 47 et seq. "In this State the long-established rule is that when parties make an oral lease of lands reserving rent, which lease is nonactionable by reason of the statute of frauds, and the lessee thereafter enters into possession under the lease, there results a tenancy which under ordinary conditions at least will by implication of law be regarded as one from year to year." Griswold v. Branford, 80 Conn. 453, 458, 68 A. 987 (1908). Even though the plaintiff entered under a void lease an enforceable tenancy is implied by law. Brodner v. Swirsky, 86 Conn. 32, 34, 84 A. 104 (1912); see also Handy v. Barclay, 98 Conn. 290, 119 A. 227 (1922); Boardman Realty Co. v. Carlin, 82 Conn. 413, 74 A. 682 (1909); Corbett v. Cochrane, 67 Conn. 570, 35 A. 509 (1896); Larkin v. Avery, 23 Conn. 304 (1854). "Occupancy under the unenforceable lease created a tenancy the termination of which was determined by law. In determining the other terms of the tenancy, such as the amount of the rent and when payable, the agreement between the parties was properly resorted to." Boardman Realty Co. v. Carlin, supra, 416. The trial court's award of damages to the plaintiff under the tenancy implied by law was not improper under General Statutes § 52-550. We next turn to the defendants' claims that the court abused its discretion in admitting testimony of Groupe, the plaintiff corporation's president, regarding lost profits and whether its finding of lost profits was supported by sufficient evidence on the record. The trial court found that the building's condition would not allow a candle manufacturing operation because of the leaking roof and lack of sanitary facilities. The court credited Groupe's testimony that his lost business profits were $24,000. Because the trial court deemed that the plaintiff's failure to remove itself when it was apparent that the premises were unsuitable caused 40 percent of its losses, the award was reduced to $14,400. The defendant claims that Groupe's testimony regarding lost profit caused by the defendants' failure to repair the building was inadmissible because it was not supported by a proper foundation; see Hall v. Sera, 112 Conn. 291, 297, 152 A. 148 (1930); and, consequently, the trial court's award of lost profits was unsupported by evidence on the record. Driscoll v. Jewell Belting Co., 96 Conn. 295, 299, 114 A. 109 (1921). The trial court has broad discretion in the admission of opinion testimony; Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 718, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991); which necessarily includes broad discretion to ascertain if the testimony is supported by a proper foundation. See Lutkus v. Kelly, 170 Conn. 252, 256-57, 365 A.2d 816 (1976). Accordingly, its determination is accorded great deference by this court. Johnson v. Healy, 183 Conn. 514, 515-16, 440 A.2d 765 (1981). The court also has broad discretion in determining damages. Buckman v. People Express, Inc., 205 Conn. 166, 175, 530 A.2d 596 (1987). The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous. Beckman v. Jalich Homes, Inc., 190 Conn. 299, 309-10, 460 A.2d 488 (1983). From our review of the record, we cannot conclude that the trial court's ruling on the admission of Groupe's testimony or its award of lost profits was clearly erroneous. Turning finally to the defendants' claim that the award of lost profits was not supported by the record, we note that the trial court has broad discretion in determining whether damages are appropriate. Buckman v. People Express, Inc., supra. Its decision will not be disturbed on appeal absent a clear abuse of discretion. Id. On the basis of our review of the record in the light most favorable to sustaining the judgment, we cannot conclude that the award of lost profits was an abuse of discretion. The judgment of the trial court is affirmed and the case is remanded with direction to render judgment in the amount of $1574. In this opinion the other judges concurred. We note an apparent mathematical error in calculating the net damages due to the plaintiff. The correct award should be $1574. Although not raised by the parties, the error is clearly technical and not substantive, and we will nevertheless correct it in our remand. See Greco v. Morcaldi, 145 Conn. 685, 690-91, 146 A.2d 589 (1958). General Statutes § 52-550 provides in part: "(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged . (4) upon any agreement for the sale of real property or any interest in or concerning real property; or (5) upon any agreement that is not to be performed within one year from the making thereof.... "(b) This section shall not apply to parol agreements for hiring or leasing real property, or any interest therein, for one year or less, in pursuance of which the leased premises have been or are actually occupied by the lessee, or any person claiming under him, during any part of the term."

The defendant's petition for certification for appeal from the Appellate Court, 35 Conn. App. 94 (AC 12434), is granted, limited to the following issue: "Under the circumstances of this case, did the Appellate Court properly reverse the trial court's summary judgment on the ground that this was a sufficient question of fact regarding whether Barry Schuss intended to cause damage, within the meaning of the defendant's policy exclusion?"

Per Curiam. The judgment is affirmed.

Borden, J. The principal issue in this certified appeal is whether the improper admission by the trial court of testimony detailing the defendant's invocation of various constitutional rights was harmless beyond a reasonable doubt. The defendant, William Daugaard, was convicted after a jury trial of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l). He appealed from the judgment of conviction to the Appellate Court, which affirmed the judgment. State v. Daugaard, 32 Conn. App. 483, 630 A.2d 96 (1993). We granted the defendant's petition for certification. We affirm the judgment of the Appellate Court. The jury could have reasonably found the following facts. At approximately 5 p.m. on May 30, 1990, the defendant, accompanied by a friend, Michael Murray, commenced an evening of bar hopping. The defendant had been drinking earlier in the day, and Murray observed that the defendant appeared close to being drunk by early in the evening, prior to visiting any bars. From approximately 5 to 6 p.m., the two men went to three bars in the greater New Haven area. They traveled in an unregistered automobile belonging to the defendant's sister that the defendant had taken without his sister's permission. Upon leaving the third bar, Murray drove because of the defendant's intoxicated condition. During this trip, the defendant discovered in the automobile one-half gallon of vodka, which he immediately started to consume. Murray and the defendant next went to Monahan's Shamrock Cafe in West Haven. While drinking at Monahan's, the defendant repeatedly told Murray that he had to "get laid" that evening. Consequently, at approximately 8:30 p.m., the defendant and Murray left the tavern to visit the homes of two female acquaintances of the defendant. Neither visit achieved the defendant's stated objective: at the first home visited by the two, the defendant's female acquaintance was leaving as the two men arrived; at the second, the woman was not at home. During the trip to the homes of these two women, the defendant continued to drink vodka straight from the bottle that he had discovered in his sister's automobile. At approximately 10 p.m., the two men returned to Murray's first floor apartment in New Haven. At Mur ray's apartment, the defendant continued to drink vodka directly from the bottle. A female friend of Murray's, Kristen Anderson, telephoned after the two had returned. At the instigation of the defendant, Murray invited Anderson and her roommate to his apartment. Anderson's roommate did not accept, but Anderson indicated her willingness to join the two men. Murray and the defendant left Murray's apartment to pick up Anderson at her apartment. All three returned to Murray's apartment at approximately 11 p.m. Upon their return to Murray's apartment, the three encountered the victim, who was sitting on the front steps of the apartment building. The victim, who had previously been Murray's girlfriend, was eighteen years old, and lived alone in a second floor apartment in the same building. Both Murray and Anderson were friends of the victim. The victim had never met the defendant. Murray introduced the victim to the defendant, and invited her to join the threesome in his apartment for a drink. The victim accepted Murray's invitation. Inside the apartment, for approximately one and one-half hours, the four sat around Murray's kitchen table drinking and listening to music. During this period the victim consumed two drinks. The defendant continued to consume straight vodka from the bottle he had discovered in his sister's automobile. When the liquor ran out, the vic tim stated that she knew of an after-hours club, approximately thirty minutes away, where additional liquor could be purchased. After some discussion, it was decided that the defendant, who had access to an automobile, and the victim, who knew the location of the after-hours club, would go to the club to purchase additional liquor. Murray and Anderson planned to wait for them to return. Between 12:30 and 1 a.m., the victim and the defendant left Murray's apartment bound for the after-hours club. Initially, the victim was driving the defendant's sister's automobile, because the defendant was intoxicated. After the victim had been driving for approximately five minutes, however, the defendant grabbed the steering wheel and forced the automobile to the side of the road. The defendant told the victim that he wanted to drive because his sister's automobile was unregistered. The victim then acceded to this demand, and the two switched seats in the automobile. The victim began to give the defendant directions as he drove. After a period of time, the victim noticed that the defendant was ignoring her directions. The defendant stated that he was taking a shortcut to the club. The defendant subsequently drove onto a highway that the victim did not recognize. She became frightened and demanded that the defendant drive her back to Murray's apartment. The defendant stated that she "wasn't going anywhere' ' and that he was "taking her to Las Vegas to be a prostitute." The victim continued to protest. The defendant then struck her in the face, grabbed her neck and forced her head under the dashboard of the automobile. The defendant then warned the victim to keep her head down and not look where they were going. The victim, who was terrified by this conduct, was crying and begging the defendant to release her. The defendant continually threatened the victim with physical harm. Each time the victim raised her head, the defendant struck her and forced her head back under the dashboard. He also told her that the only way she could get out of the automobile was to jump. The defendant eventually left the highway, driving to a secluded location on a narrow road lined by tall weeds. The defendant drove the automobile into the weeds to conceal it. The defendant then told the victim that he was "going to fuck her and make her suck his dick and that she would enjoy it, and that she would beg for more." The defendant then pulled the victim into the back seat of the automobile, pulled off her pants, and had forcible vaginal intercourse with her. After ejaculating, the defendant climbed off the victim and told her that he was going to kill her and leave her body in the weeds. The defendant then began to search for a place to dispose of the victim's body. The victim begged the defendant not to kill her. She promised not to report the sexual assault to the police if the defendant did not kill her. The defendant agreed to release the victim, but threatened to kill both her and Murray if she told of her sexual assault to anyone. The defendant then told the victim "to get the hell out of here before [he] changefd] [his] mind." The victim made her way to an unfamiliar highway, and began hitchhiking. She was picked up by a man who, at her request, dropped her off on Columbus Avenue in New Haven, three houses from the building in which she lived. She did not get out in front of her building because she was afraid that the defendant might be lying in wait for her there. Upon entering her building, the victim had no intention of telling anyone about the sexual assault. This intention was a result of her embarrassment and her fear that the defendant would kill her if she informed anyone of what had occurred. The victim went to Murray's apartment, because she knew that Murray and Anderson would be waiting for her to return, and because she did not wish to be alone. The victim had family in New Haven to whom she could have gone. When the victim entered Murray's apartment at approximately 6 a.m., both Murray and Anderson immediately noticed that something had happened to her. The two observed that the victim was crying and shaking, she was having difficulty standing, she appeared to be in pain, she had a bruise on her face, and her clothing, hair and makeup were in disarray. Upon entering the apartment, the victim exclaimed to Murray: "nice fucking friends you got." Murray then asked the victim if she had been raped by the defendant. The victim initially refused to tell Murray and Anderson what had occurred. After a thirty minute discussion, Anderson and Murray convinced the victim to tell them what had happened. After the victim told the two of the sexual assault, Murray called a local rape crisis center and the West Haven police department. The victim was taken by the West Haven police to the Yale-New Haven Hospital emergency room. The victim was examined and treated by the hospital staff, including Carla Williams, a resident physician specializing in gynecology. According to Williams, the findings of her examination of the victim were consistent with sexual assault. On cross-examination, Williams indicated that her findings after examining the victim were not consistent with consensual sexual intercourse. The victim was interviewed by two detectives from the Wallingford police department, Theodore Milewski and Patricia Miranda. Subsequent to her release from the hospital, Milewski and Miranda drove the victim around in an unsuccessful attempt to locate the scene of the sexual assault. During this drive they observed that the victim remained crouched in a fetal position, and sobbed intermittently. The defendant was arrested at his sister's home on May 31, following a complaint by his sister that he had used her automobile without her permission. While he was incarcerated in connection with the unauthorized use of his sister's automobile, the defendant was questioned by detectives from the Wallingford police department. Following this interview, the defendant was arrested for and charged with sexually assaulting the victim. Several days following his arrest, the defendant admitted to his sister that he had "fucked up" on the night the victim had been sexually assaulted and that he "remembered hitting [the victim] once" that evening. Additional facts will be discussed as they pertain to the specific claims of the defendant. I The first certified question addresses the timing of the disclosure of a certain police report during the defendant's trial. The defendant claims that the Appellate Court improperly determined that the timing of the disclosure of the police report to the defendant did not violate his due process rights under the fourteenth amendment. He argues that, because the contents of the police report were not disclosed to him prior to the victim's return to California where she was living at the time of trial, he was precluded from using the report effectively in cross-examining the victim, in violation of his due process rights. We disagree. The following facts are relevant to this claim. The victim testified at trial on May 29, June 5 and June 6, 1991, approximately one year after the crime. Upon completion of her direct testimony, the state provided the defendant with a copy of the victim's formal statement pursuant to General Statutes § 54-86b and Practice Book § 752. The defendant then conducted a voir dire of the victim to determine if any additional discoverable materials existed in addition to those that had already been disclosed to the defendant. Following the voir dire, the defendant subpoenaed all the reports that had been prepared by the Wallingford police department in connection with its investigation of this matter. The reports were duly delivered to the trial court on May 30. The trial court ordered that they be sealed and marked as a court's exhibit. The defendant moved that the trial court conduct an in-camera review of the sealed reports in order to determine if the defendant was entitled to any of them pursuant to an earlier discovery order of the court. The court denied this motion. The defendant then conducted an extensive cross-examination of the victim, covering portions of three days, and consuming 133 pages of the transcript. Following the completion of her testimony, the victim returned to her home in California. In her trial testimony, and in her formal statement to the police, the victim consistently stated that the sexual assault had occurred along a secluded road lined with tall swamplike weeds, and that an unfamiliar highway, upon which the victim and the defendant had driven, had been visible in the distance. Following the victim's testimony, the state called Detective Miranda to testify. Miranda and Detective Milewski had accompanied the victim in an effort to find the location of the sexual assault. At the completion of Miranda's testimony, the state provided the defendant with two narrative reports that Miranda had prepared. One of these reports stated, inter alia, that while Miranda, Milewski and the victim had been looking for the site of the sexual assault, the victim had mentioned that she believed the site was "in a rest area off the highway, which had a tourist information center [in it]." (Emphasis added.) On cross-examination, Miranda testified that this report had been in error, and that the victim actually had said that the sexual assault had taken place "near" a rest stop area, not "in" a rest stop area as she had noted in her report. In a second narrative report that Miranda had prepared, she noted that the victim had stated that the defendant had driven through a rest area on a highway prior to the sexual assault. "[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); State v. Milner, 206 Conn. 512, 539-40, 539 A.2d 80 (1988). The parameters oí Brady were delineated by the United States Supreme Court in Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 33 L. Ed. 2d 706, reh. denied, 409 U.S. 897, 93 S. Ct. 87, 34 L. Ed. 2d 155 (1972). "The heart of the holding in Brady is the prosecution's suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence's favorable character for the defense, and (c) the materiality of the evidence." Id.; State v. Shannon, 212 Conn. 387, 406, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989); Demers v. State, 209 Conn. 143, 150, 547 A.2d 28 (1988). To prevail on a Brady claim, the defendant must establish all three elements of this test. State v. Green, 194 Conn. 258, 263, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985); State v. Doolittle, 189 Conn. 183, 197, 455 A.2d 843 (1983). The prosecutor does not violate his constitutional duty of disclosure " 'unless his omission is of sufficient significance to result in the denial of the defendant's right to a fair trial.' " State v. Green, supra, 263-64. Suppressed evidence is material if it " 'creates a reasonable doubt [of guilt] that did not otherwise exist . . . .' " Id., 264, quoting United States v. Agurs, 427 U.S. 97, 112, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." United States v. Agurs, supra, 109-10; see State v. Doolittle, supra, 197. In circumstances in which evidence is disclosed to the defendant at trial, the defendant must establish that he was prejudiced by the state's failure to make the information available to him at an earlier time. State v. Reddick, 197 Conn. 115, 121-22, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). "The appropriate standard to be applied in a case such as this is whether the disclosure came so late as to prevent the defendant from receiving a fair trial." (Internal quotation marks omitted.) Id. "[T]he omission [of disclosure] must be evaluated in the context of the entire record.... [I]f there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial . . . . " (Internal quotation marks omitted.) State v. Green, supra, 194 Conn. 264; State v. Packard, 184 Conn. 258, 279, 439 A.2d 983 (1981). In determining whether the defendant was prejudiced by late disclosure, this court focuses on the effect of the late disclosure on the jury's verdict. See State v. Pollitt, 199 Conn. 399, 414, 508 A.2d 1 (1986). "The focus is not on the fact of nondisclosure, but the impact of the nondisclosure on the jury's verdict." Id.; United States v. Kubiak, 704 F.2d 1545, 1550 (11th Cir. 1982), cert. denied, 464 U.S. 852, 104 S. Ct. 163, 78 L. Ed. 2d 149 (1983). "The effect then of disclosable evidence should be viewed in terms of its likely effect upon those on whom the outcome rests—the jury." State v. Pollitt, supra, 414. The defendant claims that the timing of the disclosure of Miranda's report, following the victim's testimony, violated his due process rights, because it prevented him from cross-examining the victim on the inconsistency between her direct testimony and the statement she purportedly made to Miranda that was memorialized in the report. He argues that the timing of the disclosure, subsequent to the victim's testimony, prevented him from attacking her credibility by confronting her with an inconsistent statement, namely, that the assault took place, not in an area of tall weeds as she had testified, but in a rest stop area. The report was not material to the defendant within the meaning oí Brady. The level of materiality required to establish a Brady violation is that the omitted evidence, considered in the context of the entire trial, "creates a reasonable doubt [as to guilt] that did not otherwise exist. . . ." United States v. Agurs, supra, 427 U.S. 112; State v. Green, supra, 194 Conn. 265. Although the defendant claims that the report could have been used for impeachment purposes, any such use was likely to have been extremely limited. The report does not directly contradict the victim's testimony or her formal statement to the police. Miranda explained the inconsistency between the victim's testimony and one of her two reports as resulting from her own error in recordation. Such evidence is not of the type that would cause a jury to question, in any significant way, the credibility of the victim. Furthermore, the victim's testimony that the defendant had sexually assaulted her was supported by cor roborating testimony and physical evidence consistent with a determination of sexual assault. As was noted above, the victim's testimony and the statement in the report were not directly contradictory. The specific location of the assault, as opposed to whether it in fact took place, was not at issue in the trial. Furthermore, the defendant's cross-examination of the victim, aimed at undermining her credibility, was extensive and unbridled. Finally, all of the evidence offered by the defendant in defense was aimed at the victim's credibility. Although the material contained in the report could arguably have furnished additional grist for the defendant's cross-examination mill, upon examination of the entire record, we conclude that the report, had it been furnished to the defendant earlier, would not have created a reasonable doubt concerning his guilt. The Appellate Court concluded that there was not a reasonable probability that had the report been disclosed to the defendant prior to the victim's return to California, the result of the trial would have been different. State v. Daugaard, supra, 32 Conn. App. 495. The defendant provides us with no persuasive reason to disturb that conclusion, and we decline to do so. II The second certified question addresses whether the improper admission by the trial court of testimony regarding the defendant's invocation of certain constitutional rights was harmless beyond a reasonable doubt. The defendant claims that the Appellate Court improperly determined that the admission at trial of testimony by Wallingford police department detectives Milewski and Patrick Shanley that the defendant had refused to consent to a warrantless body search, had refused to waive any rights, and had desired to speak with an attorney, was harmless error. We disagree. The following facts are relevant to this claim. As was noted previously, following a complaint by the defendant's sister that the defendant had used her automobile without her permission in violation of General Statutes § 53a-119b, the West Haven police arrested the defendant on the morning following the sexual assault of the victim. The West Haven police were aware at the time that the defendant was a suspect in the sexual assault of the victim that had occurred the previous evening. The West Haven police thereafter informed the Wallingford police that the defendant was in their custody. At approximately 6:30 p.m., Milewski and Shanley arrived at the West Haven police department to interview the defendant. The detectives introduced themselves and told the defendant that he was a suspect in a sexual assault that they were investigating. The defendant was then taken out of his cell to be interviewed. After being taken from his cell, the defendant asked the detectives to tell him again where they were from. Immediately after the detectives again told the defendant that they were from Wallingford, the defendant exclaimed "it didn't happen, man." Following this exclamation, Milewski immediately cautioned the defendant and read him his Miranda rights. The detectives then asked the defendant if he understood his rights. The defendant told the detectives that he understood his rights, and nodded his head affirmatively. The defendant was then asked if he wished to waive his rights. He responded that he would not give up any rights. The defendant then reinitiated the conversation with the detectives by asking Shanley when the sexual assault had occurred. Shanley responded, and the defendant stated "it couldn't have happened that way," explaining that he was in Monahan's bar from 7 p.m. until closing, with the bartender, Joe Denehy and a man named Mark. The defendant also stated that "when I left [Monahan's] I was too drunk to remember what I did later." The detectives then asked the defendant to consent to a physical search in order to provide them with hair and saliva samples. The defendant refused this request. Shanley then asked the defendant if he knew a girl with the victim's name. The defendant responded "no," and then asserted his right to speak to a lawyer. Upon this assertion the detectives immediately terminated the interview. Subsequently, the defendant was arrested in connection with the sexual assault. At trial, both Milewski and Shanley testified, over the defendant's objection, regarding their interview with the defendant. In relating their conversation with the defendant, both detectives testified that the defendant: (1) had indicated he would not waive any rights; (2) had refused to consent to a body search; and (3) had requested to speak to a lawyer, prompting termination of the interview. The defendant did not testify at trial. Pursuant to the certified question, we assume that the admission of the detectives' testimony that the defendant would not waive his right to remain silent, requested a lawyer, and would not consent to a body search, was improper. Ordinarily, evidence of a defendant's postarrest and post-Miranda silence is constitutionally impermissible under the due process clause of the fourteenth amendment. Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). A Doyle violation also encompasses a prosecutor's comment upon a defendant's statement requesting an attorney. State v. Hull, 210 Conn. 481, 489, 556 A.2d 154 (1989). "With respect to post-Miranda warning . . . silence does not mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted." (Internal quotation marks omitted.) Wainwright v. Greenfield, 474 U.S. 284, 295 n.13, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986); State v. Green, supra, 194 Conn. 269. Doyle violations are, however, subject to harmless error analysis. South Dakota v. Neville, 459 U.S. 533, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983); State v. Canty, 223 Conn. 703, 613 A.2d 1287 (1992); State v. Hull, supra, 210 Conn. 492. The harmless error doctrine is rooted in the fundamental purpose of the criminal justice system, namely, to convict the guilty and acquit the innocent. Bunkley v. Commissioner of Correction, 222 Conn. 444, 460, 610 A.2d 598 (1992). Therefore, whether an error is harmful depends on its impact on the trier of fact and the result of the case. State v. Jones, 215 Conn. 173, 185, 575 A.2d 216 (1990). "[Bjefore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967); State v. Pittman, 209 Conn. 596, 608-609, 553 A.2d 155 (1989); State v. Plourde, 208 Conn. 455, 469, 545 A.2d 1071 (1988); State v. Green, 207 Conn. 1, 9, 540 A.2d 659 (1988). The state bears the burden of demonstrating that the constitutional error was harmless beyond a reasonable doubt. State v. Colton, 227 Conn. 231, 253-54, 630 A.2d 577 (1993). That determination must be made in light of the entire record. See State v. Francis, 228 Conn. 118, 125, 635 A.2d 762 (1993). "A Doyle violation may, in a particular case, be so insignificant that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible question or comment upon a defendant's silence following a Miranda warning. Under such circumstances, the state's use of a defendant's postarrest silence does not constitute reversible error." State v. Silano, 204 Conn. 769, 781, 529 A.2d 1283 (1987); State v. Canty, supra, 223 Conn. 711; State v. Hull, supra, 210 Conn. 492; see also Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). "The [error] has similarly been [found to be harmless] where a prosecutor does not focus upon or highlight the defendant's silence in his cross-examination and closing remarks and where the prosecutor's comments do not strike at the jugular of the defendant's story." (Internal quotation marks omitted.) State v. Silano, supra, 781; United States v. Davis, 546 F.2d 583, 594 (5th Cir.), cert. denied, 431 U.S. 906, 97 S. Ct. 1701, 52 L. Ed. 2d 391 (1977); State v. Hull, supra, 492; State v. Pellegrino, 194 Conn. 279, 292, 480 A.2d 537 (1984); State v. Zeko, 177 Conn. 545, 555, 418 A.2d 917 (1979). " 'The cases wherein the error has been found to be prejudicial disclose repetitive references to the defendant's silence, reemphasis of the fact on closing argument, and extensive, strongly-worded argument suggesting a connection between the defendant's silence and his guilt.' " State v. Canty, supra, 714; State v. Zeko, supra, 557. Our review of the record convinces us that the admission of the detectives' testimony concerning the defendant's invocation of his rights was harmless beyond a reasonable doubt. The evidence was introduced in the context of the investigative efforts made by the police in connection with the sexual assault. The reference to the defendant's invocation of his constitutional rights was marginal in the context of the entire trial. The challenged testimony was a minor portion of the testimony of two witnesses occurring in the context of a fourteen day trial. The prosecutor, moreover, in closing argument, made no comment concerning the defendant's invocation of his rights and did not otherwise highlight the evidence to the jury. Furthermore, other evidence introduced by the state persuasively established the guilt of the defendant beyond a reasonable doubt. That evidence included the victim's testimony, in which she consistently maintained, in the face of extensive cross-examination, that she had been sexually assaulted by the defendant. This testimony was corroborated by significant independent evidence. The corroboration included constancy of accusation testimony from Murray, Anderson, three police officers, a hospital social worker, and Williams, the victim's treating physician. The victim's testimony that she and the defendant had traveled together in the defendant's sister's automobile was corroborated by testimony from Murray and Anderson. The description of the automobile provided by the victim to the police corresponded with that of the automobile discovered by the police. The victim's testimony that the defendant had a certain distinctive tattoo on his chest was corroborated by photographs of the defendant. Additionally, the emotional trauma the victim displayed in the hours and days following the assault was corroborated by testimony from Anderson, Williams and three police officers. Specifically, Anderson testified that the victim had been distraught after she had returned from the journey with the defendant. Anderson testified further that, for days thereafter, during which time she stayed with the victim in Murray's apartment, the victim had been regularly crying, screaming in her sleep, and had recoiled from the touch of others. Further, Miranda and Milewski testified that the defendant had appeared to be in pain when she was transported to Yale-New Haven Hospital following the attack. These officers also testified that, when they had driven the victim around in the days following the attack, in an effort to locate the site of the attack, she had been sobbing. Milewski testified further that the victim was in a "hunched-over position with her hands in front of her" while they drove around looking for the site. The physical condition of the victim immediately following the assault was corroborated by the testimony of Murray, Anderson, Milewski and Miranda. Moreover, Williams testified that the victim had fainted at Yale- New Haven Hospital following the attack. Williams also testified that the physical condition of the victim had been consistent with sexual assault and that the victim exhibited bruises that, in her opinion, had been recently inflicted. Williams testified that nonmotile sperm had been discovered in the victim's vagina and that such nonmotile sperm could be present in the vagina for approximately twenty-seven hours after intercourse before disintegrating. In addition, the state introduced evidence that: (1) there was a seminal stain found in the crotch area of the victim's underpants that did not display evidence of the blood type of the source of the semen; (2) non-secreting individuals will not display their blood type in bodily fluids other than blood; and (3) the defendant is a nonsecretor, and therefore could have been the source of the seminal stain. Although Williams' testimony that the victim's condition was consistent with a sexual assault was challenged by Thomas Hanson, an expert for the defense, Hanson admitted on cross-examination that (1) he had never examined the victim and that his opinion was based on photographs taken of her, and (2) although the victim did not display any vaginal trauma, one half of the victims of sexual assault whom he had personally examined display no such trauma. There was also other significant evidence of the defendant's culpability. That evidence included the defendant's admission to his sister, while they were discussing the sexual assault on the victim, that he had "fucked up" on the night of the assault, and that he had hit the victim. There was testimony by Murray that the defendant had repeatedly expressed his desire "to get laid" on the evening of the attack. Specifically, Murray testified that the defendant had referred to having sexual intercourse every time the subject of women came up or when Murray spoke to a woman during the night of the attack. Murray also testified to the fact that he and the defendant had made repeated efforts to find women on the night of the attack. There was also significant evidence of consciousness of guilt arising from the defendant's false statements to the police. The defendant had stated to the police that he did not know the victim. The defendant's sister testified, however, that the defendant had indicated to her that he knew the victim, and had identified her by name. The fact that the defendant did know the victim was also established by the testimony of Murray and Anderson, by the photographic corroboration of the victim's testimony regarding the defendant's tattoo, and by the photographic corroboration of the victim's testimony describing the defendant's sister's automobile. Furthermore, the testimony of Murray and Anderson contradicted the defendant's statement to the police that he had spent the bulk of the evening at Monahan's bar, and the defendant introduced no evidence to support that purportedly exculpatory statement. The defendant presented no evidence supporting any specific defense, other than the general defense implicit in putting the state to its burden to establish guilt beyond a reasonable doubt. His entire trial strategy, as is made clear by the transcript of the evidence and of his closing argument, was to cast doubt on the credibility of the victim. In his closing argument, the defendant's attorney attempted to persuade the jury that it should reject the victim's credibility on the hypothesis that, after coming home to Murray in the early morning, she accused the defendant in order to divert the wrath of Murray, her boyfriend. There were, however, difficulties with this argument. This was certainly an argument that the defense attorney was entitled to make in order to attempt to raise a reasonable doubt about the defendant's guilt, because there was evidence that Murray had previously hit the victim on several occasions. There was, however, little or no evidence to support the defendant's theory of defense that the victim had fabricated a story of a sexual assault by the defendant because she feared further violence at Murray's hands for having returned so late. This theory might have had some plausibility had the defense been that the victim and the defendant had engaged in consensual intercourse. It was, however, wholly conjectural, as the state responded in rebuttal, in light of the defendant's statement to the police that he did not even know the victim and had spent the entire evening at Monahan's bar. Moreover, all of the evidence considered by the jury was to the contrary. Additionally, the jury knew that the victim had returned to Connecticut from California, where she had moved after the attack, in order to testify against the defendant. The jury could have reasonably inferred that, had the victim made up her charges solely to appease Murray, she would have been unwilling to return to Connecticut from California, long after the alleged fabrication, in order to perpetuate it. "Due process seeks to assure a defendant a fair trial, not a perfect one." State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982); State v. Canty, supra, 223 Conn. 722. Here, the Appellate Court concluded that the Doyle violation was so insignificant that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the admission of the detectives' testimony. Given the significant amount of evidence of the defendant's guilt, coupled with the relatively innocuous nature of the Doyle violation, we agree with the Appellate Court's conclusion. The judgment of the Appellate Court is affirmed. In this opinion Peters, C. J., and Callahan and Norcott, Js., concurred. The defendant was acquitted of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), and its lesser included offenses of kidnapping in the second degree in violation of General Statutes § 53a-94, and unlawful restraint in the second degree in violation of General Statutes § 53a-96. General Statutes § 53a-70 provides in relevant part: "sexual assault IN THE FIRST DEGREE: CLASS B FELONY . . . . (a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . ." Specifically, we certified the following questions for review: (1) "Whether the Appellate Court was correct in concluding that the timing of the disclosure of the police report during the trial did not violate the defendant's due process rights?"; and (2) "Whether the Appellate Court was correct in determining that the erroneous admission by the trial court of testimony detailing the defendant's invocation of various constitutional rights was harmless beyond a reasonable doubt?" State v. Daugaard, 228 Conn. 905, 906, 634 A.2d 298 (1994). There was conflicting testimony at trial as to the then current state of the relationship between the victim and Murray. At trial, the victim testified repeatedly that she was Murray's former girlfriend on the night in question, having previously terminated their romantic involvement and moved to her own apartment some time between one week and one month prior to the sexual assault. According to the victim, however, the two had remained friends following her move, and she and Murray had had sexual intercourse approximately three days before the night in question. Murray testified that the two were boyfriend and girlfriend at the time of the sexual assault. The victim told one police officer on the night of the incident that Murray was her boyfriend. The victim did, at one point, open the car door in an attempt to escape from the automobile. She abandoned this effort because the defendant was driving the automobile at speeds in excess of sixty miles per hour. The defendant was arrested by officers from the West Haven police department in connection with the improper use of his sister's automobile. Because there was some evidence that the sexual assault had occurred in the vicinity of Wallingford, the investigation of the sexual assault was conducted by the Wallingford police department, and the defendant was interviewed at the West Haven police station by officers from the Wallingford police department. General Statutes § 54-86b provides: "right of accused to examine statements, (a) In any criminal prosecution, after a witness called by the prosecution has testified on direct examination, the court shall on motion of the defendant order the prosecution to produce any statement oral or written of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified, and the court shall order said statement to be delivered directly to the defendant for his examination and use. "(b) If the prosecution fails to comply with the order of the court, the court shall strike from the record the testimony of the witness and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared." Practice Book § 752 provides: "--production following testimony "After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified." Miranda's reports had been delivered previously to the trial court pursuant to the previously discussed subpoena and had been sealed by the trial court. The record indicates that the defendant returned to her home in California immediately after her testimony, and that a motion by the defendant to compel the state to produce the victim and to reopen her cross-examination was denied. The Appellate Court specifically addressed that denial; State v. Daugaard, supra, 32 Conn. App. 490; and it is not a subject of this appeal. The warnings mandated by Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), are that, once the police take a person into custody, before commencing interrogation they must advise him that he has the right to remain silent and that anything he says can be used against him. He must also "be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation . . . ." Id., 471; State v. Hull, 210 Conn. 481, 489, 556 A.2d 154 (1989). The state does not present, and we do not consider, as an alternate ground for affirmance, whether the admission of the detectives' testimony was constitutionally permissible as, for example, demonstrative of "the investigative effort made by the police and the sequence of events as they unfolded . . . ." (Internal quotation marks omitted.) State v. Casey, 201 Conn. 174, 183, 513 A.2d 1183 (1986); State v. Moye, 177 Conn. 487, 496, 418 A.2d 870, vacated, 444 U.S. 893, 100 S. Ct. 199, 62 L. Ed. 2d 129, on remand, 179 Conn. 761, 409 A.2d 149 (1979); or when a police officer briefly describes what has occurred when the defendant has been interviewed at the police station. State v. Casey, supra, 183; State v. Moye, supra, 496. Evidence that the defendant refused to consent to a body search is not analytically the same as the invocation of the right to silence following Miranda warnings. Whether the state can perform a body search implicates the fourth amendment's protection against unreasonable searches and seizures, whereas the right to remain silent following Miranda warnings derives from the fifth amendment. The two analyses may differ because the refusal of a request to consent to a body search, unlike the invocation of the fifth amendment right to silence following Miranda warnings, is not ordinarily preceded by an implicit promise to the defendant by the police that no adverse consequences will flow from the defendant's assertion of his constitutional rights. Because the form of the certified question assumed equivalence between these two situations, however; see footnote 3; and because we conclude that the outcome of the case would not differ based upon that assumption, we need not decide whether the consequences flowing from evidence of a refusal to submit to a body search would be the same as the consequences flowing from evidence of the invocation of the right to silence. Daniel Tramontozzi, an expert working in the Connecticut state police forensic science laboratory, who examined the seminal stain, testified that approximately 20 percent of secreting individuals will not display evidence of blood type in particular samples of bodily fluids. The seminal stain in question, therefore, could have been produced by a secreting individual. Additionally, the stain could have been produced by a nonsecreting individual, such as the defendant, because a nonsecretor will never produce evidence of blood type in a seminal sample. This physical evidence, therefore, was consistent with, although not conclusive of, a finding that the defendant had sexually assaulted the victim. The dissent insists that "at trial the defendant never attempted to controvert, through cross-examination of witnesses, presentation of evidence or in summation, the fact that the defendant had driven with the complainant in the vehicle." We read the record differently. The defendant's cross-examination of the victim, which was aimed at attacking her credibility, did not distinguish between her credibility regarding whether they were in the automobile together and whether the sexual assault had occurred. Moreover, at no time, either during cross-examination or final argument, did the defendant suggest to the jury that the victim was telling the truth about having left with the defendant for the club, but had lied about the sexual assault. Indeed, when discussing, in final argument, the victim's testimony regarding the trip to the club, the defendant positively referred to the fact that "she," not they, left the apartment, and that "she," not they, "would be back in about ten minutes." In sum, the principal thrust of the defendant's final argument, as indicative of Ms theory of defense, was, not that the defendant and the victim had been out together for five hours, but that the entire incident simply had not occurred, and that "[wjhat we have is a story that was made up because [the victim] was coming home late and didn't want to be beaten [by Murray]." Therefore, the corroboration of the victim's testimony regarding the fact that (1) she, Murray, Anderson and the defendant had been drinking together, and (2) she and the defendant had been in the automobile together, is significant, because it independently supports her testimony and underscores the falsity of the defendant's exculpatory statements to the police when he was arrested.

Per Curiam. The judgment is affirmed. This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

The petition of the defendants Robert A. Schmitz and Marion B. Schmitz for certification for appeal from the Appellate Court, 34 Conn. App. 907 (AC 11991), is denied.

The petition of the defendants Peter Z. Wu and Judy M. Wu for certification for appeal from the Appellate Court, 34 Conn. App. 901 (AC 12130), is denied.

Schaller, J. The defendant appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit assault in the first degree in violation of General Statutes § 53a-48 (a) and 53a-59 (a) (1), attempt to commit assault in the first degree in violation of General Statutes § 53a-49 (a) (2) and 53a-59 (a) (1), and possession of a weapon or dangerous instrument in violation of General Statutes § 53a-174a (a). The defendant claims that the trial court (1) failed to comply with General Statutes § 54-84 (b), which mandates that the court instruct the jury that it draw "no unfavorable inferences" from the defendant's failure to testify, and (2) improperly instructed the jury, concerning the overt act element of conspiracy, that the court did "believe the state's evidence does point to the fact that the defendant personally committed the act of attempting to cause serious physical injury to the victim by cutting him in the throat area." We reverse the judgment of the trial court. The jury reasonably could have found the following facts. The defendant was an inmate at the Cheshire correctional center (center) and a member of a gang known as the Latin kings. The victim became an inmate at the center on March 27, 1991, and had previously given a statement to the police implicating certain members of the Latin kings in the crime of which he was convicted. On March 28, 1991, while the victim was eating in the dining hall, one of the Latin kings pointed out the victim to a group of Latin king inmates, including the defendant. The group followed the victim as he left the dining hall. The defendant approached the victim from behind and slashed him in the neck with a weapon created by embedding two razor blades into a plastic toothbrush handle. At the outset, we note that our Supreme Court has repeatedly held that a claim of noncompliance with § 54-84 (b) is reviewable on appeal even though the defendant, as here, did not submit a request to charge or take an exception to the instruction. State v. Tatem, 194 Conn. 594, 595, 483 A.2d 1087 (1984); see Prac tice Book § 4185; State v. Yurch, 229 Conn. 516, 521, 641 A.2d 1387 (1994); State v. Townsend, 206 Conn. 621, 625, 539 A.2d 114 (1988). In its final charge, the trial court instructed the jury in part that "you, as a jury, may not draw any unfair inferences from [the defendant's] failure to testify." (Emphasis added.) Pursuant to § 54-84 (b), "[u]nless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused's failure to testify. " (Emphasis added.) "[N]oncompliance with § 54-84 (b) is plain error because the statute serves to effectuate the fundamental right of a defendant not to testify in his criminal trial. State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985); see State v. Tatem, supra, 194 Conn. 595." State v. Yurch, supra, 229 Conn. 521; State v. Suplicki, 33 Conn. App. 126, 128-29, 634 A.2d 1179 (1993); but see State v. Reid, 22 Conn. App. 321, 327, 577 A.2d 1073, cert. denied, 216 Conn. 828, 582 A.2d 207 (1990) (departure from language of § 54-84 (b) so minor — substitution of "adverse" for "unfavorable" — that deviation "not improper"). The state has conceded that the trial court did not comply with the requirements of § 54-84 (b), but argues that, in light of the instructions given to each panel of prospective jurors, the preliminary remarks to the jury upon the completion of jury selection, and the entire final jury charge, the trial court's failure to comply with § 54-84 (b) was harmless. "[A]n erroneous instruction, even of constitutional dimension, is harmless if, viewed in the context of the charge as a whole, there is no reasonable possibility that the jury were misled. State v. Hines, 187 Conn. 199, 209, 445 A.2d 314 (1982). State v. Carrione, [188 Conn. 681, 685, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983)]. . . . [W]hether a charge is possibly misleading depends on the substance rather than the form of what is said. State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982). State v. Tatem, supra, [194 Conn. 599-600]. Furthermore, when a statutory violation implicates the defendant's constitutional rightfs] . . . it is the state's burden to prove harmlessness beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Yurch, supra, 229 Conn. 522-23. "In the present context, the state must show that the charge as given conveyed to the jury the substantive meaning of the statutory requirement. State v. Cobb, [199 Conn. 322, 325, 507 A.2d 457 (1986)]; State v. Marra, 195 Conn. 421, 443, 489 A.2d 350 (1985)." State v. Townsend, supra, 206 Conn. 626; State v. Miller, 34 Conn. App. 250, 258, 641 A.2d 400, cert. denied, 230 Conn. 902, 644 A.2d 916 (1994). The defendant argues that the phrase "unfair inference" differs substantially from "unfavorable inference," and that, as a result, the trial court improperly altered the meaning of the statutorily mandated language by affording the jury the opportunity to draw an unfavorable inference from the defendant's failure to testify. The word "unfair" is defined as "unjust"; Merriam-Webster's Collegiate Dictionary (10th Ed.); while "unfavorable" is synonymous with "adverse." State v. Reid, supra, 22 Conn. App. 327. "Unfair" and "unfavorable" are not synonyms, and the use of the word "unfair" in place of "unfavorable" conveys a different meaning. The defendant posits, in essence, that the jury reasonably could have been misled to believe that it could draw an unfavorable or adverse inference from his failure to testify if the jury determined that it was fair to draw such an inference in light of the other evidence against him. We agree with the defendant that the use of the word "unfair" imports a meaning different from "unfavorable," and that the use of the word "unfair" in a given context may result in harmful error. The state argues, however, that the final charge as a whole, as well as instructions to the prospective jury panel and preliminary instructions to the selected and sworn jurors, rendered harmless the trial court's improper instruction, and that the trial court did convey the substantive meaning of the statutory requirement. In its instructions to prospective jurors prior to individual voir dire, the trial court correctly explained that selected jurors could draw no unfavorable inference from the defendant's failure to testify. In its preliminary instructions to the sworn jury, the trial court did not use the exact language of § 54-84 (b), but explained that the defendant had a constitutional right to choose not to take the witness stand or to produce any evidence. In the final jury charge, the trial court noted several times that the state maintained the burden of proving that the defendant was guilty beyond a reasonable doubt and mentioned that the defendant did not have to produce any evidence. The trial court, however, specifically discussed the defendant's right not to testify in only the contested portion of the instruction. That section of the instruction provided the following: "Now in this case, the defendant, Mr. Vega, did not testify. And as you have been told, an accused person is under no obligation to become a witness on his own behalf, nor is he obliged to put forth any witnesses on his own behalf. Now, under our law an accused person may testify or not as he sees fit. It is for the state to prove him guilty of the charges beyond a reasonable doubt, and no burden rests upon him in his position as the accused to prove his innocence. Therefore, you, as a jury, may not draw any unfair inferences from his failure to testify. " (Emphasis added.) In State v. Yurch, supra, 229 Conn. 521, the trial court improperly instructed the jury that it could draw no unreasonable inference from the defendant's failure to testify. Our Supreme Court determined that this instruction was harmless in light of the language of the charge immediately following the instruction, where the trial court admonished the jury that " '[y]ou must not permit such a fact to weigh in the slightest degree against the defendant. Nor should it enter your discussions or deliberations. A defendant is not required to establish his innocence. He need not produce any evidence whatsoever if he does not choose to do so. As I have told you already, the burden is on the state to prove a defendant guilty beyond a reasonable doubt. If it fails, a defendant has the right to rely on that failure, and must be of right acquitted.' " Id., 524. The court determined that this portion of the charge "served to alert the jury to the fact that it was to draw no inference whatsoever from the defendant's failure to testify"; (emphasis added) id.; and that, therefore, the improper instruction was harmless. Here, the trial court's final instruction failed to convey the substantive meaning of the statute that the jury could draw no unfavorable inferences from the defendant's failure to testify. The instruction suggested that the jury could draw a fair or just, although unfavorable or adverse, inference from the defendant's failure to testify. Although the trial court instructed prospective jurors that they could draw no unfavorable inference from the defendant's failure to testify, at least one week elapsed between such instructions and the court's final charge. See State v. Walker, 33 Conn. App. 763, 770-71, 638 A.2d 1084, cert. denied, 229 Conn. 913, 642 A.2d 1207 (1994); State v. Kelly, 23 Conn. App. 160, 170, 580 A.2d 520 (1990), cert. denied, 216 Conn. 831, 583 A.2d 130, cert. denied, 449 U.S. 981, 111 S. Ct. 1635, 113 L. Ed. 2d 731 (1991) (remarks to prospective jurors "were temporally unconnected to the court's final charge and were totally subsumed by the final charge"). Further, we note that "[wjhen preliminary instructions are given, they 'do not supersede those given after evidence and arguments under our practice.' [State v. Woolcock, 201 Conn. 605, 623, 518 A.2d 1377 (1986).]" State v. Lewis, 220 Conn. 602, 614, 600 A.2d 1330 (1991); see also State v. Walker, supra, 770; State v. Kelly, supra, 170. In its final instruction, the trial court charged that the state had the burden of proof and that the defendant did not have to produce any evidence on his behalf. The trial court, however, specifically discussed the defendant's failure to testify only in the context of the improper portion of the instruction. There, the trial court's statement that the jury could draw "no unfair inference" together with the language immediately preceding and succeeding that phrase did not preclude the jury from drawing inferences regarding the defendant's failure to testify. See State v. Yurch, supra, 229 Conn. 523-24; see also State v. Marra, supra, 195 Conn. 443. The trial court, thus, did not convey that the jury could not consider the defendant's silence in its deliberations, and left open the reasonable possibility that the jury would misconstrue the charge and assume that it could draw an inference from the defendant's failure to testify. On the basis of the language employed by the trial court, we conclude that there is a reasonable possibility that the jury was misled to understand the charge to allow it to draw a fair, although unfavorable, inference from the defendant's failure to testify. See State v. Suplicki, supra, 33 Conn. App. 127-29. The state has not maintained its burden of establishing harmlessness. The judgment is reversed and the case is remanded for a new trial. In this opinion the other judges concurred. General Statutes § 53a-48 (a) provides: "A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy." General Statutes § 53a-59 (a) provides in pertinent part: "A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . ." General Statutes § 53a-49 (a) provides in pertinent part: "A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime." General Statutes § 53a-174a (a) provides: "A person is guilty of possession of a weapon or dangerous instrument in a correctional institution when, being an inmate of such institution, he knowingly makes, conveys from place to place or has in his possession or under his control any firearm, weapon, dangerous instrument, explosive, or any other substance or thing designed to kill, injure or disable." General Statutes § 54-84 provides: "(a) Any person on trial for crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section. "(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused's failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused's silence." "The defendant's right not to testify is rooted in the privilege against self-incrimination under both the federal and the state constitutions. ' "The fifth amendment to the United States constitution provides that no person 'shall be compelled in any criminal case to be a witness against himself.' That provision acts as a restraint upon the individual states as well as the federal government under the fourteenth amendment to the United States constitution. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1963). Article first, § 8, of the Connecticut constitution affords criminal defendants a similar protection in language at least as broad as its federal counterpart. That section, which sets forth the rights of accused persons in criminal prosecutions, provides that '[n]o person shall be compelled to give evidence against himself .'" State v. Cohane, 193 Conn. 474, 482, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984).' State v. Sinclair, supra, 197 Conn. 583 n.10." State v. Yurch, supra, 229 Conn. 521-22 n.5. We note that the state cites to Webster's Third New International Dictionary, which lists "unfavorable" as an alternate definition, following primary and secondary definitions, for "unfair." This definition, however, is qualified by the italicized phrase "of the wind," which suggests a specialized meaning of the word in a specific context. We do not find the state's argument that the listing of "unfavorable" as an alternate, specialized definition of "unfair" renders the words so close in meaning as to mitigate any possible harmfulness of the trial court's improper instruction. Because we reverse the judgment on this ground, we need not reach the defendant's second claim regarding the trial court's instructions on the overt act element of conspiracy, as we cannot state that it is likely to recur upon retrial.

Norcott, J. The defendants appeal from the judgment rendered by the trial court for the plaintiffs in this contract action. The defendants claim that the trial court erred (1) in denying the defendants' motion to dismiss made at the close of the plaintiffs' case, (2) in allowing the plaintiffs to amend their pleadings at the close of evidence to include a claim of quantum meruit, thus conforming the pleadings to the evidence, (3) in eliciting testimony from plaintiff Janet Pagni regarding the reasonable value of her services to the decedent, Mildred Browning, and (4) in holding an in-chambers conference at which a possible settlement was discussed. We find no error. The plaintiffs alleged and produced evidence that in September, 1980, the plaintiffs entered into an oral agreement with the defendants to provide personal care for the decedent. The defendant Phyllis Corneal was acting under a power of attorney at the time the agreement was entered into. Under the terms of the agreement, the plaintiffs were required to provide constant care for the decedent every week from Monday through Friday. The plaintiffs were to have their weekends free, however, and were to be relieved by one of the defendants on Saturday morning. As compensation for the care they were to provide, the plaintiffs were to receive free rent and utilities at the decedent's place of residence. The plaintiffs moved into the decedent's residence on October 18, 1980, and began providing the agreed upon care. The plaintiffs provided this care until the decedent's death on December 24, 1981. During this period of time, the plaintiffs were relieved by the defendants for only one day of each of two weekends. The plaintiffs remained with the decedent the remaining weekends. While she was living, the decedent promised to pay the plaintiffs for the additional care they provided to her on weekends. In addition, the decedent promised to leave the plaintiffs money in her will as consideration for the extra weekend care. I The defendants' first claim is that the trial court erred in denying their motion to dismiss made at the close of the plaintiffs' case. The defendants argue that the plaintiffs failed to make a prima facie showing of any sort of legally compensable harm. We disagree. "Whether the [plaintiffs] made out a prima facie case, [presents] a question of law for the court. Falker v. Samperi, 190 Conn. 412, 419, 461 A.2d 681 (1983). 'The test is whether plaintiff's evidence is sufficient, in point of law, to make out a prima facie case in his favor.' Ace-High Dresses, Inc. v. J.C. Trucking Co., 122 Conn. 578, 580, 191 A. 536 (1937)." In re Juvenile Appeal (85-1), 3 Conn. App. 158, 160, 485 A.2d 1355 (1985). In deciding this question of law, it is "the duty of the trial court to take as true the evidence offered by the plaintiff[s] and to interpret it in the light most favorable to [them], with every reasonable inference being drawn in [their] favor." Berchtold v. Maggi, 191 Conn. 266, 271, 464 A.2d 1 (1983). If, after viewing the evidence in a light most favorable to the plaintiffs, the court could not reasonably find the essential issues on the complaint in their favor, a judgment of dismissal is appropriate. Hinchliffe v. American Motors Corporation, 184 Conn. 607, 609, 440 A.2d 810 (1981). After reviewing the record, we agree with the trial court that a judgment of dismissal was not appropriate in this case. At trial, the plaintiffs produced testimony that the parties had entered into an agreement which provided that the defendants were to relieve them of their responsibility for the decedent every weekend. They produced evidence that the defendants, in fact, relieved them on only two of the sixty-one weekends during which the plaintiffs cared for the dece dent and then, only in part. Additionally, they produced evidence that the decedent had agreed to compensate them for the extra care provided. Interpreting these facts in a light most favorable to the plaintiffs, a rational trier could have found that the parties had entered into a contract and that the defendants had breached that contract. A rational trier could have concluded that because of that breach the plaintiffs were required to perform necessary and valuable services for which they were never compensated. Additionally, the trier could have found that the plaintiffs had entered into a contract with the decedent to provide care for her on weekends. See Ubysz v. DiPietro, 185 Conn. 47, 51-52, 440 A.2d 830 (1981). These are precisely the allegations made by the plaintiffs in their complaint. Accordingly, we find that the trial court did not err in denying the defendants' motion to dismiss. II The defendants' second claim is that the trial court erred in allowing the plaintiffs to amend their complaint at the close of the evidence to include a claim of quantum meruit. The defendants argue that the plaintiffs' original complaint alleged a breach of an express contract and that a claim of quantum meruit was totally inconsistent with that allegation. We disagree. Practice Book § 178 provides that "[i]n all cases of any material variance between allegation and proof, an amendment may be permitted at any stage of the trial. . . . Immaterial variances shall be wholly disregarded. " (Emphasis added.) It has long been established that a claim of quantum meruit is not a material variance from a claim sounding in express contract. Fuessenich v. DiNardo, 195 Conn. 144, 151-52, 487 A.2d 514 (1985); Cedo Bros., Inc. v. Feldmann, 161 Conn. 265, 272, 287 A.2d 374 (1971); Strimiska v. Yates, 158 Conn. 179, 183, 257 A.2d 814 (1969); Shmilovitz v. Bares, 75 Conn. 714, 715-16, 55 A. 560 (1903). Furthermore, we note that Practice Book § 193 provides in relevant part that "[i]n an action for goods sold at a reasonable price, [the plaintiff] may recover a different or a reasonable price, if the proof fails to establish the price alleged; and the like rule shall prevail in actions for work done, materials furnished, or use and occupation of land." Accordingly, we find that the trial court did not err in allowing the complaint to be amended to include a claim of quantum meruit. III The defendants' third claim is that the trial court erred in questioning the plaintiffs as to the reasonable value of the services they performed for the decedent. Because we find that the plaintiffs' complaint was broad enough to include a claim sounding in quantum meruit, we hold that the trial court did not abuse its discretion in questioning the plaintiffs. Hutchinson v. Plante, 175 Conn. 1, 3, 392 A.2d 488 (1978). IV The defendants final claim of error is that the trial judge's attempt in chambers to settle the case after the conclusion of the testimony of one of the defendants showed partiality and bias. We first note that the content of the alleged chambers discussion is not part of the record before us. We further note that at no time during the trial did the defendants make a motion for recusal or a motion for mistrial alleging that the judge had acted improperly. Our courts have repeatedly held that we will not review claims of judicial bias where neither a motion to recuse nor a motion for mistrial was made. Krattenstein v. G. Fox & Co., 155 Conn. 609, 615-16, 236 A.2d 466 (1967); Trapp v. Trapp, 6 Conn. App. 143, 145, 503 A.2d 1187 (1986). Accordingly we decline to review this claim. There is no error. In this opinion the other judges concurred. The defendants are coexecutrices of the estate of Mildred Browning. In Perlmutter v. Johnson, 6 Conn. App. 292, 297, 505 A.2d 13, cert, denied, 200 Conn. 801, 509 A.2d 517 (1986), we held that Practice Book § 193 precludes the use of quantum meruit when the parties agree to the value of the services performed. This exception, however, does not apply to the present case.

Per Curiam. There is no error.

Foti, J. This is an appeal from a judgment rendered for the defendants after the striking of the plaintiffs' petition for a writ of mandamus brought by four electors and one city council member of the city of Groton. The plaintiffs claim the trial court erred (1) in using an incorrect standard for its decision on the motion to strike, and (2) in its interpretation of the charter of the city. We find the issues to be moot. Most of the facts are not in dispute. On April 21, 1986, the clerk of the city of Groton received a petition signed by the plaintiffs and other electors of the town seeking to convene a special meeting of the electors for the purpose of acting on three resolutions pursuant to article IV, section I of the city charter. The resolutions to be considered directed the mayor and city council (1) to engage special counsel to institute legal action to challenge the constitutionality of Special Acts 1985, No. 34, which authorized conveyance from the State to a private developer of the Branford House, an historic mansion located in the city of Groton, (2) to expend the sum of $20,000 for that legal action, charging this expense to contingency or unencumbered funds, or, if no such funds were available, borrowing such sums in anticipation of next fiscal year taxes, and (3) to employ architectural engineering, recreational, historic preservation, and cultural consultants to study the acquisition of the Branford House by the city of Groton in accordance with its plan of development. Prior to the meeting scheduled to consider these proposals on May 15,1986, a petition, signed by more than four electors was filed seeking a referendum on the resolutions, pursuant to Connecticut General Statutes § 7-7. The defendant city clerk of Groton refused to schedule such a referendum, and the plaintiffs thereupon brought this action of mandamus to compel the referendum. At the hearing to show cause why the writ should not be granted, the defendants moved to strike the complaint pursuant to Practice Book § 545 alleging it failed to state a cause of action for which relief could be granted, in that it was legally insufficient since the proposed resolutions clearly exceeded the power of the electorate under the charter of the city of Groton. The plaintiffs challenge an act which no longer exists. Special Acts 1985, No. 34, which is the basis of their petition for a writ of mandamus was repealed by Special Acts 1987, No. 29. Obviously, the plaintiffs cannot challenge the constitutionality of an act which no longer exists nor can they seek to expend money for that purpose, as sought by the first two resolutions. See Breen v. Department of Liquor Control, 5 Conn. App. 432, 499 A.2d 432 (1985). The authority given to the board of trustees of the University of Connecticut to sell the state-owned Bran-ford House to private developers was withdrawn, thereby extinguishing the threat of the public use of the property. Although the property may no longer be available for sale, the plaintiffs argue that the state may in the future declare it to be surplus property, pursuant to General Statutes § 3-14. If that were to occur then the city of Groton would have an option to purchase that property under General Statutes § 3-14b. The plaintiffs use this statute to claim that the third resolution is not moot. This is highly speculative and we are not persuaded by this argument as it refers to the third resolution. We conclude that no practical relief may be granted to the plaintiffs because the property in this matter is not subject to Special Acts 1985, No. 34, the act about which the plaintiffs complain. See Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975). Jurisdiction over an appeal requires the existence of an actual and present controversy. Delevieleuse v. Manson, 184 Conn. 434, 436, 439 A.2d 1055 (1981); Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17,19, 411 A.2d 1 (1979). This court will not entertain academic questions. Young v. Tynan, 148 Conn. 456, 459, 172 A.2d 190 (1961). "It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. Connecticut State Employees Assn. v. AFSCME, 188 Conn. 196, 199, 448 A.2d 1341 (1982); Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 440 A.2d 310 (1982)." State v. Macri, 189 Conn. 568, 569, 456 A.2d-1203 (1983). The appeal is dismissed. In this opinion the other judges concurred. Article IV, section 1 provides in part: "A special city meeting shall be convened when the Mayor and Council deem it necessary. They shall convene such a meeting on a petition signed by 20 qualified electors and citizens within fifteen (15) days after receiving such petition." This resolution stated further that the city of Groton's plan of development should provide: " 'The City Requests the State to grant it a first option to purchase the facility' with the goal of preservation of the Avery Point Branford House Waterfront Complex as a public[ly] owned and public[ly] maintained prime waterfront resource for the people without any commercial amusement device, motel, casino, cocktail lounge or arrangement for any privately owned contrivance, invention, project or scheme." Special Acts 1985, No. 34 provided: "an act requiring the restoration, PRESERVATION AND DEVELOPMENT OF THE BRANFORD HOUSE IN groton. Notwithstanding the provisions of sections 4-26, 4-26a and 10a-140 of the general statutes or of any other general statutes, the board of trustees of The University of Connecticut may convey any or all of the buildings located on the Branford House site on the university's Avery Point campus and a groundlease of certain real property at the same location, to a developer. The state treasurer shall execute and deliver any deed necessary for a conveyance under this act and the board of trustees shall have the responsibility for all other incidents of such conveyances." General Statutes § 3-14 provides: "management and sales of state property. The treasurer may appoint agents to manage all property to which the state becomes legally entitled and to sell any such property not necessary for the use of the state, at public or private sale, for cash or on credit, on such terms as the treasurer approves. The treasurer shall execute any conveyances thereof and shall render an account of his proceedings to the general assembly if in session or to the governor during the recess of the general assembly; but, if any owner of such property appears, he shall be entitled to it, or, if sold, to the avails thereof, after deducting the necessary expenses." General Statutes § 3-14b provides: "prior to sale of state-owned land, option to municipality of locale to purchase. Prior to the sale of any parcel of land, or a portion thereof owned by the state, except a transfer or conveyance to the party against whom foreclosure was taken or who conveyed to the state in lieu of foreclosure under the provisions of section 17-304, the state treasurer shall first notify in writing the chief executive officer or officers of the municipality in which such land is situated of the state's intention to sell such land, and no agreement to sell land may be entered into or sale may be made by the state except as follows: "(a) Within forty-five days after such notice has been so given, such chief executive officer or officers may give written notice to the state of the municipality's desire to purchase such land and shall have the right to purchase the interest in the land which the state has declared its intent to sell, subject to conditions of sale acceptable to the state. "(b) If the chief executive officer or officers of the municipality fail to give notice, as provided in subsection (a) of this section, or give notice to the state of the municipality's desire to purchase such land, such municipality shall have waived its right to purchase the land in accordance with the terms of this section. "(c) Within sixty days after notice has been given by the municipality of its desire to purchase such land, as provided in subsection (a) of this section, the state acting through the state treasurer shall sell such land to the municipality, provided the state and the municipality agree upon the conditions of sale and the amount to be paid therefor. "(d) If the municipality fails to purchase such land within sixty days after notice has been given by the municipality of its desire to purchase the land, as provided in subsection (a) of this section, such municipality shall have waived rights to purchase the land in accordance with the terms of this section, subject to the provisions of subsection (e) of this section. "(e) Notwithstanding the provisions of subsections (b) and (d) of this section, if the state thereafter proposes to sell such land to any person upon terms different than those offered to the municipality, the state shall first notify the municipality of such proposal, in the manner provided in subsection (a) of this section, and of the terms of such proposed sale, and such municipality shall have the option to purchase such land upon such terms and may thereupon, in the same manner and within the same time limitations as are provided in subsections (a) and (c), inclusive, of this section, proceed to purchase such land."

Spallone, J. The plaintiff appeals from the judgment rendered after the trial court's granting of the defendant's motion to strike the plaintiff's complaint in its entirety. The plaintiff, Patricia Mora, instituted this action by filing a four count complaint. The first count sought damages for emotional distress which allegedly resulted from the defendant's refusal to pay workers' compensation benefits. In her second count, the plaintiff claimed that the defendant's refusal to pay such benefits constituted a breach of an implied contract provision of good faith and fair dealing. The third count of the complaint alleged a violation of the Connecticut Unfair Insurance Practices Act; General Statutes § 38-60 and 38-61; and the fourth count alleged a violation of the Connecticut Unfair Trade Practices Act. General Statutes § 42-110b (a). In each count, the plaintiff repeated the following allegations: "On or about April 5,1982, and at all times mentioned herein, the plaintiff . . . was an employee of New Britain Memorial Hospital . . . and was injured within the scope of that employment and hence, entitled to benefits under the Workers' Compensation Act. . At all times mentioned herein, the Workers' Compensation carrier, insuring said liability of the employer . . . was the Defendant. . . . Under the Workers' Compensation Act, the plaintiff . . . has been and is entitled to temporary total disability benefits, temporary partial disability benefits and the payment of medical, hospital, medication and related expenses. Yet, the defendant refuses to pay said benefits and bills although clearly obligated to do so under the Workers' Compensation Act. . . . The conduct of the defendant was and is such that it knew or should have known that it would result in the infliction of emotional distress upon the plaintiff and her family. . . . As a result of the defendant's intentional, wanton, willful and/or wrongful conduct, the plaintiff has suffered emotional distress, financial damages, and other losses and damages." The defendant filed a motion to strike all four counts of the plaintiff's complaint on the grounds (1) that they were barred by the exclusive remedy provisions of the Workers' Compensation Act, (2) that they failed to allege that the defendant admitted liability or that the workers' compensation commissioner had made a determination of liability, and (3) that they failed to allege sufficient facts to constitute a cause of action. The motion to strike was granted and, after the plaintiff failed to file a substitute complaint within fifteen days, the trial court granted the defendant's subsequent motion for judgment. See Practice Book § 157. The plaintiff then filed this appeal. Although the plaintiff has presented us with five individual claims of error, all stemming from the granting of the motion to strike, there is no need for a detailed discussion of each. The fate of this case lies solely in our determination of whether the plaintiff's complaint sufficiently stated a cognizable cause of action as a matter of law. We find that it did not. "A motion to strike challenges the legal sufficiency of a pleading. It replaced the demurrer in our practice. Like the demurrer, it admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; citations omitted.) Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985); see also Sheiman v. Lafayette Bank & Trust Co., 4 Conn. App. 39, 42, 492 A.2d 19 (1984); Greene v. Metals Selling Corporation, 3 Conn. App. 40, 41, 484 A.2d 478 (1984). A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts. Simmons v. Parizek, 158 Conn. 304, 308, 259 A.2d 642 (1969). Such is the case here. Each of the complaint's four counts is intrinsically contingent on the same factual premise: that the plaintiff was entitled to payment of workers' compensation benefits and that the defendant, as the employer's insurer, was legally obligated to pay them. Yet the plaintiff did not set forth facts in her complaint which would support this premise; rather, she simply alleged that she had been injured within the scope of her employ ment. The plaintiff now argues that this allegation is sufficient to infer entitlement to workers' compensation benefits. For us to accept the plaintiff's claim is to ignore the existence of our Workers' Compensation Act; General Statutes § 31-275 et seq.; and the myriad caselaw interpreting those provisions. Entitlement to workers' compensation benefits does not attach upon a mere request for payment. There must first be an injury which is embraced by one of the three exclusive types of compensable conditions defined by the act. Grady v. St. Mary's Hospital, 179 Conn. 662, 664 n.l, 668, 427 A.2d 842 (1980); see also McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 109, 527 A.2d 664 (1987). The employee must also claim, and prove, that the injury "(1) arose out of the employment, and (2) occurred in the course of employment. McNamara v. Hamden, 176 Conn. 547, 550, 398 A.2d 1161 (1979)." Luddie v. Foremost Ins. Co., 5 Conn. App. 193, 195, 497 A.2d 435 (1985). There must also be adequate notice to the employer, within the statutory period. General Statutes § 31-294; Vegliante v. New Haven Clock Co., 143 Conn. 571, 580, 124 A.2d 526 (1956). Finally, the employer's liability to compensate the employee must be established. There are only three ways to fix an employer's liability: first, by the employer's failure to contest liability within twenty days of receiving notice of the injury as required by General Statutes § 31-297 (b); see Bush v. Quality Bakers of America, 2 Conn. App. 363, 479 A.2d 820, cert, denied, 194 Conn. 804, 482 A.2d 709 (1984), and cases cited therein; second, by the commissioner's approval of a written voluntary agreement entered into by the employer and employee pursuant to General Statutes § 31-296; and third, where the employer contests liability and the parties fail to reach an agreement, by the adjudication of the claim by the workers' compensation commissioner and the granting of an award to the employee. The plaintiff disregards all of these requirements, claiming that the exclusive remedy provisions of the Workers' Compensation Act control only her right to proceed against her employer and do not prohibit the bringing of this action against the employer's insurer. Whether or not this assertion is accurate; see Coollick v. Windham, 7 Conn. App. 142, 148, 508 A.2d 46 (1986); the plaintiff's claim must fail in light of the fact that her complaint did not sufficiently allege that her entitlement to workers' compensation benefits had attached. At the time the plaintiff filed her complaint, the insurer's duty to pay compensation had not yet arisen. There is no error. In this opinion the other judges concurred. The plaintiff claims that the trial court erred (1) in deciding that the complaint was brought prematurely because of the lack of allegations concerning liability, (2) in concluding that there is an inseparable identity between the employer and its insurance carrier in this case, (3) in concluding that the employer's immunity from a common law negligence action is applicable to the insurer, (4) in concluding that the complaint was factually insufficient concerning the employer's liability although the defendant did not request a revision, and (5) in striking the nonnegligence counts in the plaintiffs complaint. If the employer elects to exercise his statutory right to contest his liability to pay compensation, a hearing must be held. General Statutes § 31-297. At this hearing, "the plaintiff has the burden of proving that his injuries were sustained in the course of his employment and that they arose out of that employment." Dombach v. Olkon Corporation, 163 Conn. 216, 221, 302 A.2d 270 (1972). To presume that the defendant's obligation to initiate payments could possibly arise before the employer's liability to compensate had been established, is contrary to the tenets and principles of insurance law. "The liability of the insurer can be no greater than that of the insured employer. The measure of a compensation insurer's liability under a policy issued under and pursuant to [the workers' compensation] statutes is the employer's liability to the injured employee under the compensation act." 15A G. Couch, Insurance 2d (1983) § 56:53, p. 80.

Dupont, C. J. The plaintiff wife appeals from the judgment rendered in this fully contested dissolution action, challenging the custody and financial awards ordered by a state trial referee acting as the trial court. The court dissolved the parties' marriage and awarded sole custody of their minor child to the defendant husband, with limited visitation rights in the plaintiff. The court awarded the plaintiff rehabilitative alimony in the amount of $200 per week for a duration of two years. The court did not award the plaintiff any lump sum property settlement nor did it order the defendant to pay the plaintiff's counsel fees. The plaintiff has raised four claims of error on appeal. She argues that the trial court erred (1) in awarding custody of the minor child to the defendant, (2) in refusing to award counsel fees to the plaintiff, (3) in refus ing to award to the plaintiff a lump sum distribution as a property settlement, and (4) in awarding rehabilitative alimony for only a two year duration. We find error. I We first address the issue of custody. In its memorandum of decision, the trial court found that the parties were hostile toward one another and that the child would benefit the most by living in the home that offers the most stability. The trial court reviewed the background of the parties and noted that the "plaintiff has been confined to a psychiatric hospital in her youth, has suffered from severe chronic depression, had a problematic and sad life from childhood, is functionally disabled at times and needs to receive drug treatments which she has refused." The attorney for the child recommended that custody be awarded to the plaintiff. A family relations case study report which was written thirteen months prior to the court's determination of custody was introduced at trial. The trial court stated that the "Domestic Relations Officer has written an extensive report in this case based on a very good investigation and has recommended custody of Jennifer to be in the defendant as the parent who tends to be more secure." On the basis of the thirteen month old family relations case study report and all other evidence, the court awarded sole custody of the minor child to the defendant with the plaintiff to have specified visitation rights. Our standard of review in domestic relations cases is a very narrow one. We will not reverse a trial court's rulings with regard to custody and financial orders unless the court incorrectly applied the law or could not reasonably have concluded as it did. Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985). In making a determination of custody, the governing standard is the best interests of the child. General Statutes § 46b-56; Yontef v. Yontef, 185 Conn. 275, 282, 440 A.2d 899 (1981). "[T]he court [is] bound to consider the child's present best interests and not what would have been in her best interests at some previous time." (Emphasis in original.) In re Juvenile Appeal (Anonymous), 177 Conn. 648, 664, 420 A.2d 875 (1979); see also Guss v. Guss, 1 Conn. App. 356, 361, 472 A.2d 790 (1984). The court below erred in failing to consider the present best interests of the child when it determined the issue of custody. The court's recitation of the plaintiff's past medical history in its memorandum of decision does not focus on the present abilities or infirmities of the plaintiff as they may affect her ability to be a primary caretaker of the child. The references therein to the plaintiff's confinement to a psychiatric hospital, chronic depression, a problematic and sad childhood, children born out of wedlock, and life on welfare are all past events. Furthermore, the family relations custody report was thirteen months old at the time of its introduction into evidence. To compound its error in relying on outdated evidence which is not probative of present parenting abilities, the trial court admitted that it placed great weight on the written report: "The report had a great influence in this case, there's no question about it." At trial, the domestic relations officer testified that after his completion of the custody report in October of 1984, he had no contact with the parties or the minor child except for one meeting thereafter. Most significant, however, is his testimony that due to the passage of time he could not competently testify as to whether the parties' stability and security had changed since his report. We recognize that a party's prior conduct and past medical condition may have a direct bearing on his or her present fitness to be a custodial parent. "In the exercise of its awesome responsibility to find the most salutory custodial arrangement for the children of divorce, the court must . . . take account of the parents' past behavior, since it must evaluate their present and future parenting ability and the consistency of their parenting for the purpose of determining which parent will better foster the children's growth, development and well-being." Yontef v. Yontef supra, 283. At the same time, however, the focus of the court's inquiry must be designed to meet the primary objective which is to determine the present parenting ability of the parties. Based upon the facts and conclusions as set forth in the trial court's memorandum of decision, it is evident to this court that the trial court did not consider those paramount interests. Ordinarily, a finding of error in the trial court's order of custody would require custody to revert to the status quo ante until a new hearing is held. We are aware, however, that the minor child has been living with the defendant for more than two years and that the best interests of the child might not be served by requiring the child to return to the plaintiff's residence pending a new hearing. Our supervisory power, pursuant to Practice Book § 2000 and 4183, "includes the power to make appropriate postappeal orders. See In re Juvenile Appeal (83-BC), 189 Conn. 66, 81, 454 A.2d 1262 (1983)." Guss v. Guss, supra, 365 (Borden, J., concurring). In order to "[protect] the primary interests of the [child] in a continuous, stable custodial placement"; Yontef v. Yontef, supra, 291-92; we order that physical custody of the child remain with the defendant until the trial court has had an opportunity to address the issue of custody at a new hearing. II The second claim of error raised by the plaintiff is that the trial court erred in not awarding her any counsel fees. The trial court originally made no specific ruling on the issue of counsel fees. On a motion for articulation, the court denied the plaintiffs request for counsel fees on the ground that she had commenced the case: "If she were the defendant in this case I always order a fee because she's required to defend herself when the husband brings suit against her." The plaintiff argues that the court has misconstrued the basis for an award of counsel fees. We agree. Pursuant to General Statutes § 46b-62, a trial court has the discretion to award counsel fees to a party in a dissolution action "in accordance with their respective financial abilities and the criteria set forth in Section 46b-82," including length of the marriage, causes for the dissolution of the marriage, the age, health, station, occupation, amount and sources of income, vocational skill, employability, estate and needs of each party. Holley v. Holley, 194 Conn. 25, 34, 478 A.2d 1000 (1984); Szilagyi v. Szilagyi, 3 Conn. App. 25, 28, 484 A.2d 469 (1984). The unambiguous language of § 46b-62 makes it clear that the statutory authorization for awarding counsel fees is not dependent on the status of a spouse as plaintiff or defendant. It was, therefore, improper for the trial court to determine the issue of counsel fees in a dissolution action on the basis of party status. Rather, the proper inquiry should have focused on the statutory criteria. The undisputed facts show that the plaintiff did not have the funds available with which to pay for her counsel fees, whereas, the defendant did. " 'Courts ordinarily award counsel fees in divorce cases so that a party (usually the wife) may not be deprived of her rights because of lack of funds. Krasnow v. Krasnow, 140 Conn. 254, 265, 99 A.2d 104 (1953); Steinmann v. Steinmann, 121 Conn. 498, 504, 186 A. 501 (1936).' Ridolfi v. Ridolfi, 178 Conn. 377, 380, 423 A.2d 85 (1979)." Koizim v. Koizim, 181 Conn. 492, 501, 435 A.2d 1030 (1980). These rights exist regardless of whether a party is a plaintiff or a defendant. Although the trial court is not obligated to make express findings on each of the criteria enumerated in § 46b-82; Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982); the memorandum of decision must at least reflect that the trial court properly considered and weighed the factors set forth in the statute in determining the granting of attorney's fees. Holley v. Holley, supra, 31-32; Szilagyi v. Szilagyi, supra, 29. It is apparent from the trial court's remark that it would have ordered counsel fees if the plaintiff were the defendant. That articulation makes it clear that the court did not properly apply the law. Ill The plaintiff next argues that the trial court erred in refusing to award a lump sum property settlement. General Statutes § 46b-81 provides that the court in a dissolution action may assign to either spouse all or any part of the estate of the other, including title to real estate. This statutory provision is permissive not mandatory. Debowsky v. Debowsky, 12 Conn. App. 525, 526, 532 A.2d 591 (1987). "A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria. Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982); Carter v. Carter, 8 Conn. App. 356, 358, 512 A.2d 979 (1986)." Debowsky v. Debowsky, supra. Although the provisions for assign ments of property and awards of alimony are contained in separate statutes, the standards by which the courts determine such awards are almost the same. Pasquariello v. Pasquariello, 168 Conn. 579, 583, 362 A.2d 835 (1975). The one characteristic which distinguishes a property assignment from an award of alimony is the court's duty, pursuant to subsection (c) of § 46b-81, to in addition consider the "contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates." Id. Both parties, in their respective briefs, acknowledge that the trial court's decision not to award any lump sum distribution as a property settlement was mainly based on its determination that the plaintiff "brought nothing to the marriage and contributed little to it." In the context of the sentence in which these words appear, it is clear that the court was talking about the lack of any monetary contribution. We realize that whether the parties made a contribution in the acquisition and preservation of property is a question of fact. Sweet v. Sweet, 190 Conn. 657, 661, 462 A.2d 1031 (1983). At the same time, however, it is apparent to this court that the trial court failed to consider any of the nonmonetary contributions allegedly made by the plaintiff to the acquisition, preservation or appreciation in value of the parties' respective estates. The plaintiff argues that the evidence at trial showed that her major contributions to the marriage were the care and rearing of the minor child and the upkeep of the family home. Our review of the record indicates that the trial court failed to consider (1) whether any of the plaintiff's alleged nonmonetary contributions to the family during the marriage made it possible for the husband to acquire or retain property, and (2) whether the wife's alleged nonmonetary contributions to the family during the marriage had the effect of preserving the value of already-acquired property or appreciating the value of already acquired property. The issue, then, that this court must decide is whether the phrase "contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates," within the meaning of § 46b-81 (c), contemplates nonmonetary as well as monetary contributions. The statute does not contain a specific definition of the word "contribution," and the word as used in the statute is ambiguous. See International Business Machines Corporation v. Brown, 167 Conn. 123, 133, 355 A.2d 236 (1974). In light of the fact that an ambiguity exists as to whether it means solely financial contributions, or financial and nonfinancial contributions, such as homemaking services and primary caretaking responsibilities for the minor children, "we must invoke the fundamental rule of construction which mandates that this court ascertain and give effect to the intention of the legislature. State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985); State v. Salz, 8 Conn. App. 125, 141, 515 A.2d 921 (1986). In construing a legislative act, we may consider its history, its language, and the purpose it is designed to serve. Feldman v. Administrator, 138 Conn. 724, 727, 89 A.2d 210 (1952)." Hartford Federal Savings & Loan Assn. v. Tucker, 13 Conn. App. 239, 248, 536 A.2d 962 (1988). In examining the legislative hi story of § 46b-81, we note that the statutory language directing a court "also [to] consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates" when making an equitable distribution of the property upon dissolution, was introduced into our General Statutes in 1973 by Public Acts 1973, No. 73-373, § 20. Our review of the transcribed comments of the judiciary, house, and senate meetings in which House Bill 8235, entitled "An Act Concern ing the Dissolution of Marriage," was discussed, indicates no intent on the part of the legislature to limit the meaning of the word "contribution" to encompass solely financial contributions. In fact, although the legislative history does not reveal any attempt to define the word "contribution," there were comments indicating an intent to require a court to take into consideration all relevant factors necessary to make a fair determination concerning alimony and property settlements. In support of the bill, one legislator stated: "[I]t does in fact for the first time in Connecticut's history treat men and women equally]. It does provide that the court look at them not as men and women but as parties and look at their various obligations in their various capacities with respect to earning and all the other aspects that should be considered." (Emphasis added.) 16 H.R. Proc., Pt. 5,1973 Sess., p. 1989, remarks of Representative Bernard L. Avcollie. Representative Mary B. Griswold stated: "I was one of the strong supporters of the equal rights amendment for women and I feel that this new divorce law will help the rights of women in this state. . I support this bill . . . because I think it will make it more equitable for the women of the state. " (Emphasis added.) 16 H.R. Proc., Pt. 12, 1973 Sess., p. 5919, Griswold. The purpose of a lump sum distribution as a property settlement is to make an equitable division of property. McPhee v. McPhee, 186 Conn. 167, 170, 440 A.2d 274 (1982). A court must, therefore, "unscramble" ownership of property in order to give each spouse what is equitably his or hers. Id. An equitable division of property upon divorce or dissolution envisions that full recognition by the courts will be given to the noneconomic contributions of both spouses. See, e.g., Artiss v. Artiss, 8 Fam. L. Rep. 2313 (Hawaii Cir. Ct. 1982); Rothman v. Rothman, 65 N.J. 219, 320 A.2d 496 (1974); DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174 (1975); Paul W. v. Margaret W., 8 Fam. L. Rep. 3013 (Pa. Ct. Common Pleas, 1981); Parrott v. Parrott, 278 S.C. 60, 292 S.E.2d 182 (1982). A property division ought to accord value to those nonmonetary contributions of one spouse which enable the other spouse to devote substantial effort to paid employment which, in turn, enables the family to acquire tangible marital assets. The investment of human capital in homemaking has worth and should be evaluated in a property division incident to a dissolution of marriage. We hold, accordingly, that an equitable distribution of property should take into consideration the plaintiffs contributions to the marriage, including homemaking activities and primary caretaking responsibilities. We find that the trial court abused its discretion in failing to consider the plaintiffs nonmonetary contri butions in the acquisition, preservation or appreciation of property. We hold that a determination of each spouse's "contribution" within the meaning of General Statutes § 46b-81 includes nonmonetary as well as monetary contributions. As such, equity demands that this case be remanded to the trial court to determine whether the plaintiff made a nonmonetary contribution to the marriage and, if so, whether that fact would change its ultimate decision regarding the proper allocation of property. IV In its memorandum of decision, the trial court noted that the plaintiff has never held steady employment for any reasonable period of time but that she has had some training toward a nursing career. Although the court determined that no permanent alimony was warranted, it concluded that the defendant "should provide some funds to help rehabilitate the [plaintiff] in obtaining training for a permanent job," and awarded the plaintiff rehabilitative alimony of $200 per week for a duration of two years for the purpose of "enabling] the plaintiff to secure necessary training." The plaintiff argues that the trial court erred in awarding rehabilitative alimony for only a two year period in light of the fact that the uncontroverted testimony of the plaintiff indicated that pursuit of a nursing career required an additional four years of formal education. The plaintiff contends that the periodic alimony order does not serve the purpose for which it is intended and, therefore, it is legally and logically inconsistent with the facts presented. We first recognize the well established principle that a trial court may exercise broad discretion in awarding alimony as long as it considers all of the statutory criteria enumerated in General Statutes § 46b-82, including length of the marriage, the causes for the dis solution of the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of the parties. Carpenter v. Carpenter, 188 Conn. 736, 742, 453 A.2d 1151 (1982); Debowsky v. Debowsky, supra, 526. Our review of the record indicates that the trial judge did consider these mandatory factors in determining whether to award alimony. Although the trial court applied the correct legal standard in its determination of alimony, its determination to award the plaintiff $200 per week for a two year duration was logically inconsistent with the facts as found by it. The trial court found that the plaintiff has never held a steady job, has lived on welfare for a period of time, and is functionally disabled at times due to her medical problems. The court expressed serious doubts as to whether the plaintiff will ever be able to "get on her feet again" and support herself. The court also recognized that the plaintiff has had some training toward being a nurse, that she desired to continue her nursing education, and that four years of training were required to do so. The court concluded that the defendant was financially able to provide rehabilitative alimony and that it was his duty to provide it. The court emphasized that it was awarding "rehabilitative" alimony. The unambiguous purpose of rehabilitative alimony is to allow the recipient spouse to attain self-sufficiency. Therefore, the duration and amount of rehabilitative alimony should attempt to achieve the purpose for which it was designed. Markarian v. Markarian, 2 Conn. App. 14, 16, 475 A.2d 337 (1984) (per curiam). In this case, the purpose of the rehabilitative alimony was to allow the plaintiff to finish her nursing training or other training so that she may obtain permanent employment. "Underlying the concept of [rehabilitative] alimony is the sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency." Id. ' The trial court awarded rehabilitative alimony in order that the plaintiff might become a nurse. The alimony awarded was clearly awarded for an insufficient duration. If the trial court did not contemplate nursing training but rather any training which could lead to permanent employment, then the duration of the award is also confusing. Neither the record nor the trial court's memorandum of decision indicates the rationale underlying the exercise of discretion which it undertook in limiting the alimony to two years. Given the plaintiff's lack of vocational skills and training, and the trial court's conclusions that she is not stable, has had emotional problems, and has never been able to support herself, there is no reasonable basis for its conclusion to limit the payments to a two year period. The alimony award does not serve its purpose as support in that it does not appear to allow the plaintiff enough time in which to attain self-sufficiency. In fact, such facts would appear to militate against time-limited alimony, at least for so short a duration. See, e.g., Bak v. Bak, 24 Mass. App. 608, 622 n.14, 511 N.E.2d 625 (1987). The trial court even admitted as much as evidenced in its statement: "Well, I've given her a very limited amount as far as rehabilitation is concerned." The award is logically inconsistent with the facts presented; Vanderlip v. Vanderlip, 1 Conn. App. 158, 160, 468 A.2d 1253 (1984); and, therefore, cannot be upheld. There is error, the judgment of the trial court is set aside with respect to its orders of custody, counsel fees, property division and rehabilitative alimony and the case is remanded for a new hearing on the custodial and financial issues. Physical custody of the minor child shall be with the defendant until the trial court has had an opportunity to address the issue of custody at the new hearing. In this opinion the other judges concurred. There are several "equitable distribution" statutes in other states which specifically require a court to consider the nonmonetary contributions of a homemaker spouse when making awards of property. See, e.g., Colo. Rev. Stat. § 14-10-113 (1) (a); Ill. Stat. Ann. c. 40, § 503 (c) (1) (Smith-Hurd); Md. Cts. & Jud. Proc. Code Ann. § 3-6A-05 (b) (1); Mass. Gen. Laws Ann. c. 208, § 34 (West); Mont. Code Ann. § 40-4-202; N.Y. Dorn. Rel. Law § 236 (McKinney Sup.); Pa. Cons. Stat. Ann. § 23-501 (b) (12) (Purdon Sup.); Uniform Marriage and Divorce Act § 307, 9A U.L.A. The absence of specific reference to a homemaker's contributions, however, should not be construed as implying that such considerations are therefore not required. For example, in Rothman v. Rothman, 65 N.J. 219, 320 A.2d 496 (1974), the New Jersey Supreme Court construed the state's equitable distribution statute, N.J. Stat. Ann. § 2A:34-23, to include consideration of a spouse's supportive role in the family unit. The Rothman court explained: "The statute we are considering authorizes the courts, upon divorce, to divide marital assets equitably between the spouses. The public policy sought to be served is at least twofold. Hitherto future financial support for a divorced wife has been available only by grant of alimony. Such support has always been inherently precarious. It ceases upon the death of the former husband and will cease or falter upon his experiencing financial misfortune disabling him from continuing his regular payments. This may result in serious misfortune to the wife and in some cases wall compel her to become a public charge. An allocation of property to the wife at the time of the divorce is at least some protection against such an eventuality. In the second place, the enactment seeks to right what many have felt to be a grave wrong. It gives recognition to the essential supportive role played by the wife in the home, acknowledging that as a homemaker, wife and mother she should clearly be entitled to a share of family assets accumulated during the marriage. Thus, the division of property upon divorce is responsive to the concept that marriage is a shared enterprise, a joint undertaking, that in many ways it is akin to a partnership. Only if it is dearly understood that far more than economic factors are involved, will the resulting distribution be equitable within the true intent and meaning of the statute. " (Emphasis added.) Rothman v. Rothman, supra, 228-29; see also Parrott v. Parrott, 278 S.C. 60, 62-63, 292 S.E.2d 182 (1982), where the Supreme Court of South Carolina held that even though real property has traditionally been distributed on the basis of title, property titled in the husband's name upon divorce may be awarded to the wife in order adequately to compensate her for her contributions in providing a home for the family unit. On appeal, the plaintiff did not raise any claim or make any argument that the Connecticut equal rights amendment; Conn. Const, art. I, § 20; compels the courts to consider the homemaker's contribution to the acquisition of marital assets as equal to that of the wage earning spouse. See, e.g., DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174 (1975); see also Mass. Gen. Laws Ann. c. 209, § 32 (West) (state legislative implementation of its equal rights amendment compels the courts to consider the contribution of a homemaker in making an equitable distribution of property). For a thorough discussion of the law and arguments relevant to this issue, see J. Avner, "Using the Connecticut Equal Rights Amendment at Divorce to Protect Homemakers' Contributions to the Acquisition of Marital Property," 4 U. Bridgeport L. Rev. 265 (1983). The author states that "it can be argued that the state [equal rights amendment] provides a constitutional basis for treating the homemaker spouse and the wage-earner spouse as beginning on an equal footing with regard to division of marital property. From this starting point, the court can then evaluate the other criteria listed in the particular equitable distribution statute or developed through case law and, depending upon application of those criteria to the individual case before it, the actual division of property might shift accordingly away from an equal split to one balanced in favor of one spouse. . . . Thus, this approach reinforces the concept of 'equitable distribution' by assuring legal recognition of the value of homemaker work without removing necessary flexibility from the court." Id., 280-81; see also Cersosimo v. Cersosimo, 188 Conn. 385, 397-98, 449 A.2d 1026 (1982) (in the absence of evidence that either the court at the time of divorce or the court involved in any subsequent modifications did or did not consider the "unpaid service of the wife as homemaker," and in view of the lack of factual predicate to frame the constitutional issue, the wife's gender-based claim of discrimination in acting on her motion for modification of alimony was not properly before the Supreme Court).