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Parskey, J. Linda and Edwin Remkiewicz were married in February, 1971. In March, 1975, Linda instituted an action to dissolve this marriage. Because at that time Linda had been receiving state assistance for herself and her child Jennifer, the attorney general, by virtue of General Statutes § 46-63 (now § 46b-55), became a party to the action and moved for an order of support for Jennifer. Jennifer had been born to Linda in 1967 while she was married to one Eldridge Harris. The trial court denied the motion for lack of jurisdiction over Jennif er and the state has appealed. In 1972, the defendant filed an affidavit of parentage with the bureau of vital statistics to effect a change in Jennifer's birth certificate and to reflect the defendant to be her father and her name to be Jennifer Bemkiewicz. Jennifer's biological father is one Thomas Farretta of the state of Washington. Farretta informally acknowledged Jennifer as his child and provided support for her for two years. Linda and the defendant first met in March, 1970. Although the defendant was not her natural parent, from the time of his marriage to Linda until the summer of 1975, Jennifer regarded him as her father and the defendant treated her as his child, publicly acknowledging her to be such and taking her as a tax allowance. Because the defendant was neither the natural nor'adoptive parent of Jennifer, the trial court felt it had no jurisdiction to enter an order for her support and therefore denied the state's motion. I The order of support was sought by the state in a\ dissolution action. The question arises whether the court had any authority to issue such an order as against a husband who was neither the biological nor adoptive parent of the child for whom support was sought. To begin with, the power of the Superior Court to dissolve a marriage emanates wholly from statute. Morrow v. Morrow, 165 Conn. 665, 668, 345 A.2d 561 (1974); Steele v. Steele, 35 Conn. 48, 54 (1868). Its further authority to issue any order as to the custody, care and education of the minor children of the parties, as an incident of the dissolution action, is also governed by statute. Dunham v. Dunham, 97 Conn. 440, 444, 117 A. 504 (1922). Authority exists, under General Statutes §46-42 (now § 46b-56) and §46-58 (now §46b-58), to order support for minor children, including children adopted by both spouses and natural children of one spouse who are adopted by the other. The word "children" in § 46-42 means legitimate children. See State v. Wolfe, 156 Conn. 199, 203, 239 A.2d 509 (1968). The duty to support which the court enforces under § 46-42 is one imposed on parents. See General Statutes §46-57 (now §46b-84). The defendant was not Jennifer's parent because he was not her biological father, he was not her father by adoption, nor was he adjudged to be her father by a judgment of the Court of Common Pleas in a paternity proceeding brought under General Statutes § 52-435a (now § 46b-160) or by a formal acknowledgement of paternity filed with that court under § 52-442a (now § 46b-172). Thus, the defendant was under no statutory obligation to provide parental support. II The state claims the benefit of General Statutes § 45-274. This section, in part, provides that "[c]hildren born before marriage whose parents afterwards intermarry shall be deemed legitimate and inherit equally with other children." Had the defendant been the child's natural parent or had he been adjudged her parent his subsequent marriage to the child's mother would have legitimated her for all purposes under § 45-274. Simsbury v. East Granby, 69 Conn. 302, 303, 37 A. 678 (1897). The state argues that, once legitimated, the child would have all of the support rights of a natural child of the marriage or an adopted child. In order to prevail based upon this statute, the state must prove that the defendant is Jennifer's natural parent. The evidence, however, shows that the defendant did not meet Jennifer's mother until 1970, some three years after Jennifer's birth. There was no evidence other than the defendant's affidavit of paternity which suggests otherwise. The state relies exclusively on the defendant's affidavit of parentage to establish him as Jennifer's natural parent. This affidavit was an evidential admission. Such admissions, while relevant as proof of the matter stated; Worden v. Francis, 153 Conn. 578, 582, 219 A.2d 442 (1966); are not conclusive. Toffolon v. Avon, 173 Conn. 525, 537, 378 A.2d 580 (1977). An evidential admission is subject to expla nation by the party making it so that the trier may properly evaluate it. Kucza v. Stone, 155 Conn. 194, 198, 230 A.2d 559 (1967). The explanation offered was that the defendant intended to adopt Jennifer but used the acknowledgement for the purpose of changing the birth certificate as a less expensive method than a formal adoption proceeding. Other evidence in the case clearly indicates that the defendant could not have been Jennifer's natural parent. The trial court was not required to accept the affidavit as proof of Jennifer's parentage. Ill Because the defendant's statement of parentage was made under oath and because the defendant not only publicly acknowledged Jennifer as his child but also took her as a tax allowance, the state argues that the defendant should be estopped from denying his paternity. " 'There are two essential elements to an estoppel: the party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do something to his injury which he otherwise would not have done. Estoppel rests on the misleading conduct of one party to the prejudice of the other. In the absence of prejudice, estoppel does not exist.' Breen v. Aetna Casualty & Surety Co., 153 Conn. 633, 643, 220 A.2d 254; Themper v. Themper, 132 Conn. 547, 550, 45 A.2d 826." Morrow v. Morrow, supra, 669. No prejudice has been shown here. It appears from the evidence that neither the state nor Jennifer's mother changed position to the injury of either one in reliance on the affidavit of parentage. IV Finally, the state argues that public policy dictates in favor of permitting a written acknowledgement to furnish a sufficient basis for the issuance of a support order. In this case, however, public policy cuts two ways. The adoption statutes contained in chapter 778 of the General Statutes express a legislative intent that no person shall acquire parental status unless certain formalities are observed. A parent has rights as well as duties. If a stepfather could acquire parental rights through the simple expedient of changing his stepchild's birth certificate, all sorts of mischief could result. If the state commissioner of income maintenance wishes to impose obligations of support on persons who acknowledge paternity in writing; see General Statutes §17-324; State v. Wolfe, supra, 206; the legislature is the appropriate forum to consider his concerns. There is no error. In this opinion the other judges concurred. The complaint, counterclaim and judgment contained in the printed record before us incorrectly indicate 1970 as the year of marriage. The court, with the agreement of the parties, allowed the error in the complaint to be amended at trial. Certain facts in the court's finding are drawn from a report filed by an attorney appointed by the court to represent the minor child in this action. The state assigned error regarding the court's failure to accept the conclusions contained in the report and the court's ruling allowing into evidence testimony which contradicted portions of the report. The state's sixth assignment of error apparently accepts the incorporation of the report in the finding. In any event no objections to this report being before the trial court have been briefed. See Healy v. White, 173 Conn. 438, 441, 378 A.2d 540 (1977). The support order sought by the state would not have required the court to have jurisdiction over the minor child. See Beardsley v. Beardsley, 144 Conn. 725, 727, 137 A.2d 752 (1957). Consequently, we decide this appeal on other grounds. Paternity matters are now heard in the Superior Court. General Statutes § 51-164s; Public Acts 1976, No. 76-436, § 498. In its brief the state has set forth General Statutes § 45-274 in its present form, including subsection (b) (2) which provides rights of inheritance for a child born out of wedlock from a person who "has acknowledged under oath in writing to be the father of such child." This subsection was added in 1978 by Public Act 78-199, § 1 and therefore is not applicable to this case. We do not discuss the state's claim of waiver because as used in the context of this ease the concepts of waiver and estoppel are used interchangeably. The label counts for little. See Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 564, 316 A.2d 394 (1972).

The defendant's petition for certification for appeal from the Superior Court in the judicial district of New London is granted by the court.

Per Curiam. In its judgment dissolving the marriage the trial court entered certain alimony orders including an order that after four years from the date of the decree, if the defendant is employed or is receiving benefits from unemployment payments, other labor related sources or Social Security, the plaintiff's periodic alimony payments shall be reduced to $125 per week. In his appeal the plaintiff claims that the trial court abused its discretion in entering a future order without any evidence of the future financial circumstances of the party. This claim is without merit. The trial court had sufficient financial information before it upon which to base both its present and future alimony orders. In the event of a substantial change of circumstances both present and future alimony orders are ordinarily subject to modification. General Statutes § 46b-86. Sanchione v. Sanchione, 173 Conn. 397, 404, 378 A.2d 522 (1977). There is no error. The original memorandum of decision, but not the judgment, omitted a statement dissolving the marriage. The omission has been corrected by an amended memorandum of decision made part of the record. The defendant has not pursued her cross-appeal because the issues raised therein have become moot.

The plaintiffs' petition for certification for appeal from the judicial district of New London at Norwich is denied by the court.

Per Curiam. In this action, which arises ont of the death of Michael Mclnerney, his estate claims damages for wrongful death, his wife's estate claims damages for loss of consortium for the period that she survived her husband, and his two children claim damages for loss of his society and services. These claims are set forth in a nine count complaint against the named defendant, for which Michael Mclnerney was working at the time of the accident which resulted in his death, and against two of his co-employees, who are alleged to have been at fault because of their wilful and wanton acts. The trial court granted a motion of the defendant employer to strike the three counts of the complaint directed against it. Upon motion of one of the co-employees, the defendant Martin Monie, the court also struck two of the three counts against him. The effect of these rulings was to leave standing in the trial court the count of the estate of Michael Mclnerney for wrongful death against Martin Monie and the three counts against the other co-employee, Emil Cecio, who had elected to answer the complaint rather than move to strike any part of it. The plaintiffs appealed from the "decision" granting the motions to strike rather than from a judgment, contrary to our established practice. General Statutes § 52-263; Practice Book § 3000. We might overlook this deficiency, which the defendants have waived by their failure to object, if there were in fact a judgment, but there is none, nor could one properly have been rendered. Practice Book $ 157 authorizes the entry of judgment following the granting of a motion to strike only "in those instances where an entire complaint, counterclaim or cross complaint has been stricken . . . ." Since the court struck only five of the nine counts of the complaint, no judgment could have been rendered. "[T]he evident purpose of this restriction was to discourage piecemeal litigation by limiting appeals to situations where all of the claims made by a party have been resolved by the decision upon the motion to strike." Kilbride v. Dushkin Publishing Group, Inc., 186 Conn. 718, 721, 443 A.2d 922 (1982); Breen v. Phelps, 186 Conn. 86, 89-90, 439 A.2d 1066 (1982). In Kilbride v. Dushkin Publishing Group, Inc., supra, 724-25, we held that where a judgment following the granting of a motion to strike was not authorized by § 157, the defect was jurisdictional and the appeal had to be dismissed. The fact that this appeal was filed prior to that decision is not a sufficient distinction nor is the fact that all of the counts against one defendant, the employer, have been stricken. "We cannot read into § 157 any exception for situations where the partial judgment rendered is fully dispositive insofar as some of the parties are concerned." Kilbride v. Dushkin Publishing Group, Inc., supra, 724. Furthermore, the complete disregard of § 157 by the plaintiffs in failing to seek a judgment under its provisions would have warranted dismissal of the appeal even prior to Kilbride. Costecski v. Skarulis, 103 Conn. 762, 131 A. 398 (1925); see Breen v. Phelps, supra, 89. The appeal is dismissed.

The defendant's motion to dismiss the appeal from the Superior Court in New Haven County is denied.

Arthur H. Healey, J. In this appeal the defendant, the city of West Haven (city), is challenging the propriety of the trial court's order assessing treble damages against it pursuant to General Statutes § 52-566. By way of a cross appeal, the plaintiffs have raised a number of issues. They claim that the trial court, O'Sullivan, J., erred in failing to set aside the verdict as against the law and as inadequate; in disclosing to the jury that their verdict, if for the plaintiffs, would be trebled; and in directing a verdict for the defendant on the first two counts of its amended complaint. We hold that the trial court did err in assessing treble damages against the city under the particular circumstances of this case. In regard to the claims raised by the plaintiffs, we find none of the issues to be presented properly. Therefore, we do not reach the merits of their cross appeal. The plaintiffs, five in number, are the owners of three parcels of property located in the city of West Haven, and one parcel located in the town of Orange. While the three parcels in West Haven are contiguous, access to the parcel in Orange is blocked by the Oyster River. In 1960, a bridge was built over the river by C. W. Blakeslee & Sons, Inc. to provide a means of access to the property in Orange. This bridge consisted only of two forty-eight inch culverts covered with fill. The installation of the bridge caused extensive flooding of the property located upstream from it. In the ensuing years, residents of the area whose property was flooded made a number of complaints to officials of the city of West Haven. In 1974, as a result of an investigation by the city into the flooding, it undertook to clean and align 600 feet of the Oyster River, which included that portion of the river which passed through the plaintiffs' property. As part of this project, the two culverts were removed, leaving the plaintiffs without any access to their property in Orange. No compensation was paid to the plaintiffs for the removal of this bridge, nor did the city of West Haven seek or receive permission to remove the bridge. In the meantime, in May, 1972, the city of West Haven commenced the construction of a sewage facility known as the Oyster River pumping station. The general contractor for the project was C. W. Blakeslee & Sons, Inc. The site for this facility was located on a portion of the plaintiffs' land in West Haven known as the "second piece." Prior to commencing this project, the city had not obtained the permission of the plaintiffs to build on their land, nor had it compensated the plaintiffs for the taking or use of their property. In 1975, after discussions with the office of the city's corporation counsel, the plaintiffs deeded the "second piece" by warranty deed to the city. The city paid the plaintiffs $14,500 for the property. In addition, the plaintiffs, in their brief, claim that the attorney for the city orally promised that the city would replace the bridge that it had removed. The city did not follow through on this alleged promise. As a result, the plaintiffs filed the present action. After a trial to the jury, the plaintiffs were awarded $7424. The trial court then trebled this amount pointing out that it was acting pursuant to General Statutes § 52-566, as set forth above, for a total judgment of $22,272. These appeals followed. We first take up the city's claim that the trial court erred in trebling the amount of the verdict reached by the jury. In order to assess the city's claim, it is necessary to review the counts upon which the jury reached its decision. The plaintiffs' amended complaint contained eight counts. The trial court submitted only two of these counts to the jury: counts five and six. Both of these counts concern the actions of the city in removing the plaintiffs' bridge. The fifth count, in pertinent part, provides: "7. During the period February 23,1974 through May 24, 1974, the defendants, acting by its agents, servants or employees, wrongfully took and destroyed the said bridge. 8. The aforesaid act of the defendant City of West Haven constituted a deprivation and a taking of the plaintiffs' private property . 9. The plaintiffs have not received just compensation for the taking of their property from the defendant." The sixth count provides in pertinent part: "8. The acts of the defendant City of West Haven, as aforesaid, constitute wanton conduct and a nuisance with regard to the plaintiffs, to the plaintiffs' great detriment and damage." By contrast, the seventh count, which did not go to the jury, provides in pertinent part: "7. During the period February 23, 1974 through May 24, 1974, the defendant, City of West Haven, acting by its agents, servants or employees, to wit: C. W. Blakeslee & Sons, Incorporated, then a Connecticut corporation with its place of business in New Haven, Connecticut, willfully removed and destroyed the aforesaid bridge and its approaches. 8. The defendant is a 'person' within the meaning of Sec. 52-566 of the Connecticut General Statutes. 9. The defendant is liable to the plaintiffs pursuant to Sec. 52-566 of the Connecticut General Statutes in that it willfully removed or destroyed the aforesaid bridge and its approaches and therefore is bound to pay the plaintiffs as the owners of said bridge or their successors and assigns treble damages under said statute." In their prayer for relief the plaintiffs requested, inter alia, treble damages pursuant to General Statutes § 52-566. The city claims that because only the fifth and sixth counts were submitted to the jury, there was no proof that the jury's verdict was founded upon a violation of the statute. Where, as here, the jury returns a general verdict, the city claims that the court was not authorized in trebling the damages assessed by the jury. In their briefs, both parties recognize that the circumstances under which a party can recover double or treble damages under a statute were set forth in Tillinghast v. Leppert, 93 Conn. 247, 105 A. 615 (1919). "We require that the complaint shall clearly state such facts as will bring the case within the statute. Broschart v. Tuttle, 59 Conn. 1, 8, 21 Atl. 925 [1890]. And we require that the claim for relief shall be specifically based upon the statutory remedy. Dunbar v. Jones, 87 Conn. 253, 257, 87 Atl. 787 [1913]. We also require the proof to indicate that the verdict was necessarily founded upon a violation of the statute authorizing the extraordinary damages. Broschart v. Tuttle, 59 Conn. 1, 8, 21 Atl. 925 [1890]; Dunbar v. Jones, 87 Conn. 253, 256, 87 Atl. 787 [1913]. And we have held that it must clearly appear that the jury found for the plaintiff under the statutory cause of action authorizing these extraordinary damages, and not for any other alleged cause of action. Dunbar v. Jones, 87 Conn. 253, 256, 87 Atl. 787 [1913]. Where the complaint contains two causes of action, one under the statute authorizing these extraordinary damages and one under the common law, and the verdict is a general one, we have held that the court may not treble the damages assessed by the jury. Dunbar v. Jones, supra." Tillinghast v. Leppert, supra, 249-50; see also George Rose Sodding & Grading Co. v. Omaha, 190 Neb. 12, 13-14, 205 N.W.2d 655 (1973); 25A C.J.S., Damages ^ 195. The city claims that the verdict reached by the jury was a general verdict and, as such, provides an insufficient basis for the trebling of damages under the Tillinghast decision. The plaintiffs agree in their brief that the jury returned a general verdict but claim that Tillinghast provides an exception to the rule that statutory damages cannot be awarded where there is a general verdict. They cite the following portion of that opinion as support for their position. "It is possible that the record may show clearly, notwithstanding the general verdict, that the jury found the damages under the statute allowing the trebling or doubling of the damages, and not for any other alleged cause of action, but where this, does not so appear the rule adopted must govern." Tillinghast v. Leppert, supra, 250. The plaintiffs, arguing that they come within this exception, claim that "the record shows clearly that the jury, if it found for the plaintiffs, could only have done so on the basis of the defendant's wilful destruction of the plaintiffs' bridge." We cannot agree with the plaintiffs' contention that, notwithstanding the general verdict, this case comes within the exception set out in Tillinghast. First of all, neither count five nor six specifically alleges that the city or its agents or employees acted "wilfully" as required by General Statutes § 52-566. While this court has not been called upon to define the meaning of the term "wilfully" as it appears in General Statutes $ 52-566, we have done so in other contexts. In discussing what constituted a wilful battery, this court stated in Alteiri v. Colasso, 168 Conn. 329, 362 A.2d 798 (1975), that it was not sufficient " 'to constitute such an injury that the act resulting in the injury was intentional in the sense that it was the voluntary action of the person involved. Not -only the action producing the injury but the resulting injury must be intentional.' " Id., 333, quoting Rogers v. Doody, 119 Conn. 532, 534, 178 A. 51 (1935). In discussing the meaning of the term "wilful misconduct" as used in the Workmen's Compensation Act, § 5226 of the General Statutes (1930 Rev.) (now General Statutes $ 31-284), we noted: " 'Misconduct is any improper or wrong conduct. . . . By wilful misconduct is meant either intentional misconduct, that is, such as is done purposely with knowledge, or misconduct of such a character as to evince a reckless disregard of consequences.' " Bigelow Co. v. Waselick, 133 Conn. 304, 308, 50 A.2d 796 (1946), quoting Gonier v. Chase Companies, Inc., 97 Conn. 46, 55-56, 115 A. 677 (1921); see also Milford v. Swarbrick, 24 Conn. Sup. 320, 323, 190 A.2d 493 (1963); Lutteman v. Martin, 20 Conn. Sup. 371, 373-74, 135 A.2d 600 (1957). A similar definition must be applied in interpreting the term "wilfully" as it appears in General Statutes § 52-566. Such "wilful" conduct must encompass both the physical act proscribed by the statute and its injurious consequences. That is, for a person to be assessed treble damages, it must be shown that he not only intentionally removed or destroyed a bridge, but that he intended to cause an injury as a result or acted with reckless disregard as to whether an injury would result. The only way for such an injury to occur is if the bridge that is destroyed or removed does not belong to the person doing the destruction or removal. In other words, the person must, prior to taking any action to remove or destroy the bridge, know that the bridge belongs to another or act with reckless disregard of the consequences in failing to determine the true owner. The plaintiffs contend that it is sufficient merely to demonstrate that a person intentionally destroyed or removed a bridge. This interpretation would produce the bizarre result that a person who removes or destroys a bridge belonging to himself could be liable under the statute. We cannot presume that the legislature intended to create such a bizarre result, but intended a "sensible statutory construction." See State v. Campbell, 180 Conn. 557, 563, 429 A.2d 960 (1980) and cases cited; Stoni v. Wasicki, 179 Conn. 372, 376, 426 A.2d 774 (1979); Bordonaro v. Senk, 109 Conn. 428, 430, 147 A. 136 (1929). In the present ease, we cannot agree that a claim of "wrongfulness" and/or "nuisance" as alleged in the fifth and sixth counts is equivalent to the requirement of "wilfulness" as defined above. In addition, we also note the testimony elicited at the trial does not support the plaintiffs' position so as to bring them within the exception in Tillinghast, Morton Hecht, the director of community management for the city, testified that the city did not determine who was the owner of the bridge prior to removing it. A jury could have reasonably concluded that the city acted "wrongfully" by not determining ownership, and at the same time conclude that it did not act "wilfully." Therefore, we must reject the plaintiffs' contention that the record "show[s] clearly, notwithstanding the general verdict, that the jury found the damages under the statute allowing the trebling or doubling of the damages, and not for any other alleged cause of action." (Emphasis added.) Tillinghast v. Leppert, supra. We hold that the trial court erred in trebling the damages awarded by the jury where the jury did not explicitly find a violation of General Statutes § 52-566. We now turn to the issues raised by the plaintiffs in their cross appeal. Their first claim is that the court erred in failing to set aside the verdict as inadequate. The plaintiffs' brief cites the testimony of two witnesses, William J. Roper and Edward N. Halprin, both of whom, the plaintiffs argue, testified that the cost of replacing the bridge was substantially more than the amount of the verdict reached by the jury. The problem with this claim is that, while a transcript of Roper's testimony has been filed, the plaintiffs have not filed a transcript of any of Halprin's testimony before the jury regarding the cost of replacing the bridge. Practice Book § 3060V. The only transcript of Halprin's testimony regarding the costs of replacing the bridge that has been filed, and the transcript to which the plaintiffs' brief and appendix cite, contains only Halprin's testimony on the costs of replacing the bridge before Judge O'Sullivan while the jury was outside the courtroom. The purpose of this testimony was to determine whether Halprin's assessment of the costs of replacing the bridge would be admissible. Due to this omission, we do not have the basis for reviewing whether the court erred in refusing to set aside the jury's verdict as being against the law and inadequate. For example, Halprin's testimony before the jury may have provided a basis for the jury's arriving at the figure they did. We simply do not know. It is a plaintiff's burden to ensure that this court is provided with an adequate appellate record. Accurate Forging Corporation v. UAW Local No. 1017, 189 Conn. 24, 28, 453 A.2d 769 (1983); Kaplan v. Kaplan, 186 Conn. 387, 388 n.1, 441 A.2d 629 (1982); Hartford National Bank & Trust Co. v. DiFazio, 177 Conn. 34, 40, 411 A.2d 8 (1979). Therefore, we do not consider this aspect of the plaintiffs' claim. The final issue raised by the plaintiffs is their claim in their brief that the court erred in directing a verdict for the city on counts one and two in the amended complaint. The short answer to this claim is that the trial court did not direct a verdict on those two counts. Rather, the trial court, having heard those two counts as a court, rendered judgment for the city on those two counts. Nor can it be said that this fact could have taken the plaintiffs by surprise since it is clearly stated both in the judgment and in the city's brief. Notwithstanding these clear pronunciations of the trial court's actions, counsel for the plaintiffs in oral argument continued to claim that the trial court erred in directing a verdict on counts one and two. In any event, because the issue as framed assumes an action not taken by the trial court it will not be considered. There is error on the defendant's appeal and it is ordered that the case be remanded to the trial court with direction to reinstate the jury's verdict of $7424. There is no error on the plaintiffs' cross appeal. In this opinion Peters, Parskey and Grillo, Js., concurred. General Statutes (Rev. to 1979) § 52-566 provides: "Any person who wilfully removes or destroys any part of any bridge, or of its approaches, shall pay treble damages to the owner thereof or to the party bound to maintain: .the same." There was testimony that in 1972 one of the owners knew of the project and agreed to it, apparently under certain conditions. This information and agreement, however, was never passed on to all of the other owners. A ninth count was added during the trial. In the present ease, the seventh count clearly set forth sufficient facts to bring this count within the statute. Broschart v. Tuttle, 59 Conn. 1, 8, 21 A. 925 (1890). The seventh count, however, was not submitted to the jury, nor did the eourt charge the jury on the issue of wilfulness. Bather, the court charged the jury that they were to decide only counts five and six. Following the charge, the plaintiffs did not take any exception to the court's failure to submit count seven to the jury. In addition, the plaintiffs have not raised any claim regarding the failure to submit the seventh count to the jury or the court's failure to charge on the issue of wilfulness either in their preliminary .statement of issues or in their briefs. Because of the plaintiffs' failure to preserve any alleged claim of error arising from the seventh count, either during the trial or upon appeal, we will not consider any such claim. Presutti v. Presutti, 181 Conn. 622, 626, 436 A.2d 299 (1980); State v. Sumner, 178 Conn. 163, 171, 422 A.2d 299 (1979). It is also for this reason that we decline to accept the dissenting opinion's position that the seventh count should be remanded to the trial court for a new trial. This ease aptly demonstrates the reason behind the requirement that claims be raised at the trial eourt. Had the plaintiffs taken a proper exception in this ease, the trial court would have been in a position to consider correcting its error before it was too late to do so. See State v. Albin, 178 Conn. 549, 555-56, 424 A.2d 259 (1979). Finally, accepting the dissent's contention that the appellate rules do not require an appellee to request that a case be remanded for further proceedings in the event that error is found in the judgment would, in this ease, negate the requirement that an issue be raised in the trial eourt in the first instance. Practice Book § 3063. The dissent claims that the plaintiffs had no reason to preserve any other claim for review because they prevailed in the trial eourt. After the trial court had charged the jury, however, and before the verdict, they did not know they would prevail. Had the plaintiffs taken a proper exception at that time and requested the trial eourt to submit count seven to the jury, they may not have prevailed. Therefore, for the plaintiffs to prevail in this appeal, they must demonstrate that this case comes within the exception set forth in Tillinghast v. Leppert, 93 Conn. 247, 105 A. 703 (1919). Because of .this holding we reserve for another day the issue of whether a municipality is a "person" as that term in used in § 52-566. In this regard, we note that the file indicates that the plaintiffs ordered all of Halprin's testimony from the court reporter. This does not in any way, however, lessen the plaintiffs' burden. The plaintiffs also claimed that the court erred by informing the jury that their award would be trebled. This claim, as it is set out in the plaintiffs' brief, also cannot be considered because it encompasses the issue of the propriety of the jury's award, which we have declined to review for the reasons we have already stated. In regard to this issue, we note that in their preliminary statement of the issues the plaintiffs claim that the court erred in directing a verdict on the "First, Second, Third, Fourth, Fifth, Sixth, and Ninth eounts." First, as is evident from our opinion, the fifth and sixth counts were decided by the jury. The third, fourth and ninth counts have not been briefed. " 'Where an assignment of error is to be pursued, it must be briefed. Any other rule would work an injustice and hardship on the adverse party. Cushing v. Salmon, 148 Conn. 631, 633, 173 A.2d 543 [1961].' Fleischer v. Kregelstein, 150 Conn. 158, 160, 187 A.2d 241 (1962)." Cersosimo v. Cersosimo, 188 Conn. 385, 396 n.17, 449 A.2d 1026 (1982). In oral argument, counsel for the plaintiffs claimed he was not abandoning the claims under the ninth count. Where a party fails to brief an issue, however, it is deemed abandoned. See Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 475-76, 423 A.2d 141 (1979), and cases cited. Therefore, any claims arising from the ninth eount will not be considered. In addition, the plaintiffs, in their preliminary statement of issues, claimed that the court erred in failing to award interest on the judgment. This claim has also not been briefed and is likewise deemed abandoned. The trial court also heard the third and fourth counts as a court and rendered judgment thereon for the defendants. The judgment provides, in pertinent part, as follows: "[W]hen all the evidence having been submitted, the Court entered judgment for the defendant on Counts 1, 2, 3 and 4, and directed the verdict for the defendant on Counts 8 and 9."

The plaintiff's motion to dismiss the appeal dated May 6, 1975, from the Superior Court in Hartford County is granted unless the defendant files her brief on or before July 10, 1975.

It appearing that the parties in the above-entitled case have failed to pursue the appeal from the Court of Common Pleas in Fairfield County at Stamford, it is, under Practice Book § 696, ordered by the Supreme Court, suo motu, that the appeal he and hereby is dismissed.

Bogdanski, J. This stockholder's derivative action was brought on behalf of the defendant T. H. Canty and Company, Inc., a Connecticut corporation, by the Katz Corporation, a Delaware corporation and minority stockholder of the defendant corporation. The plaintiff sought relief against the defendants Michael Steinberg, John Keogh, Jr., and Frank N. Robinson, all officers and directors of the defendant corporation, alleging that they had breached their fiduciary duty to the corporation by usurping a corporate opportunity and benefiting personally thereby. The trial court found the issues for the defendants and the plaintiff has appealed to this court. Error is claimed in the refusal to find material facts claimed to be admitted or undisputed; in finding material facts without evidence; in the conclusions reached; and in the overruling of the plaintiff's claims of law. The trial judge noted in the file that although several of the plaintiff's requested draft findings "may be said to be admitted or. undisputed facts, . to include them in the finding would add nothing of value and protract a finding already lengthy which is deemed to recite the essential subordinate facts of the case." We agree that no additions to the finding will benefit the plaintiff in presenting the questions of law which it wishes to have reviewed by this court. State v. Carnegie, 158 Conn. 264, 266, 259 A.2d 628, cert. denied, 396 U.S. 992, 90 S. Ct. 488, 24 L. Ed. 2d 455. Of the remaining assignments of error directed at sixteen findings of facts, six have been expressly abandoned, and ten are supported by the evidence printed in the appendix to the defendants' brief. T. H. Canty and Company, Inc., was formed by merger in 1940 for the principal purpose of conducting a real estate and insurance business. Five thousand shares of no par value stock were authorized and eventually issued. Some time after the merger there was a "loose informal understanding" among some of the directors that if a director learned that any stockholders wished to sell their stock, he would allow the corporation to purchase it instead of purchasing it for himself. Subsequently, many additional directors were elected who were not informed of that informal understanding. Over a thirty-year period, T. H. Canty and Company, Inc., purchased an average of fifty shares per year of its own stock, although there were several years when no pur chases were made and some occasions when it refused to buy its own stock. The various stock purchases by the company averaged $115 per share. In August of 1971, Robert A. Katz, who had served as a director of T. H. Canty and Company, Inc., for seven years, announced that he would not be a candidate for reelection to the board. At that time Katz had access to all information concerning the corporate affairs and he knew the values of all the properties owned by the corporation. The individual defendants, among others, were subsequently elected or reelected to serve as officers and directors on August 17, 1971. Katz then made a contingent offer on behalf of the plaintiff, Katz Corporation, to purchase at least fifty-one percent of the outstanding stock of T. H. Canty and Company, Inc., at $250 per share. The executive committee rejected that offer because it was considered too low. Katz then made an offer of $275 per share which was also rejected. In the fall of 1971, the directors learned that others were considering making offers for the corporation's stock and it was decided to seek the services of an outsider to make a valuation of the assets and net worth of the company. The outside valuation was deemed unnecessary, however, when the defendant Robinson and another director jointly valued the stock t_d. be worth $380 per share. That figure was later reduced to $360 per share, representing the liquidation value of the corporation not including liquidation expenses. In October of 1971, the directors decided that any offers for the purchase of company stock should be made by October 29 when the directors would consider them. It was understood that there was no obligation on the part of the corporation or share holders to accept or reject any such offers. Katz Corporation then increased its offer to $300 per share. During discussions between Katz and the defendant Keogh, Katz indicated that if the plaintiff were to gain control of T. H. Canty and Company, Inc., the present officers and directors would not be retained; the insurance business would be made a subsidiary of the plaintiff corporation; and the real estate holdings of T. H. Canty and Company, Inc., would be liquidated in order to get the insurance business "for nothing." At a stockholder's meeting on November 1, 1971, the stockholders were informed that the stock was initially valued at $380 per share and subsequently reduced to $360 per share before liquidation expenses. The stockholders were further advised that Katz Corporation had made an offer of $300 per share. At that meeting, the shareholders were asked to vote on three options: 2011 shares were voted to sell stock, 1817 were voted to retain stock and continue the company, 259 were voted to liquidate the company and 576 were undecided. By letter dated November 5, 1971, Katz Corporation continued its offer of $300 per share contingent, however, upon acquiring sixty-seven percent of the stock. In the latter part of November, the defendants learned that a substantial amount of the company's stock had been turned over to a local bank pursuant to the plaintiff's tender offer. They believed that a takeover was inevitable unless they could buy enough stock to take control themselves. They proceeded to borrow $580,000 for this purpose and, on November 24, 1971, they started to acquire stock at $310 per share. On November 25, Thanksgiving Day, the plaintiff sent telegrams to all stockholders increasing its offer to $325 per share, still conditioned upon obtaining at least sixty-seven percent of the stock. The next day, the individual defendants acquired additional stock at $325 per share and voluntarily paid $325 per share to all stockholders who had sold stock to them on November 24 for $310 per share. At the time the defendants solicited stockholders for the sale of their stock, they disclosed that liquidating dividends might be received in excess of the $325 per share being offered. The plaintiff's offers did not make such disclosures. The individual defendants acquired 1849 shares of stock at $325 per share which, when combined with stock owned by them or their families, totaled 3313 shares or slightly less than two-thirds of the outstanding stock of T. H. Canty and Company, Inc. The trial court found that T. H. Canty and Company, Inc., did not have sufficient cash or liquid assets to enable it to purchase the 1849 shares of stock acquired by the individual defendants. At a meeting of the shareholders in December, 1971, it was voted almost unanimously to liquidate the corporation. The complaint alleged in substance that the defendants knew, on the basis of inside information, that the stock of T. H. Canty and Company, Inc., had considerably more value than the $325 offered by them to individual stockholders; that they knew of the "prior course of conduct of buying stock for the corporation"; that by purchasing stock for themselves they usurped a corporate opportunity and made "a personal profit which would otherwise inure to the benefit of the corporation"; and that they were in breach of their fiduciary duty to the corporation. The relief requested included an accounting for all purchases and sales of stock made by the defendants on and after August 1, 1971, and an order requiring them to sell and deliver all such stock to the T. H. Canty and Company, Inc., for the same consideration paid by them. The trial court concluded that T. H. Canty and Company, Inc., had no interest in its outstanding stock and that the defendants had not violated their fiduciary duty owed to the corporation. An officer and director occupies a fiduciary relationship to the corporation and its stockholders. Arrigoni v. Adorno, 129 Conn. 673, 681, 31 A.2d 32. He occupies a position of the highest trust and therefore he is bound to use the utmost good faith and fair dealing in all his relationships with the corporation. General Statutes § 33-323; Osborne v. Locke Steel Chain Co., 153 Conn. 527, 534, 218 A.2d 526; Massoth v. Central Bus Corporation, 104 Conn. 683, 689, 134 A. 236; Mallory v. Mallory Wheeler Co., 61 Conn. 131, 139, 23 A. 708; see Cross, Corporation Law in Connecticut §6.8; 3 Fletcher, Private Corporations (Perm. Ed. Rev. 1975) § 838, 850. The first issue raised by the plaintiff is that the defendants had the burden of proving fairness and "good faith" where their conduct has been challenged as a breach of fiduciary duty. The plaintiff relies on Massoth v. Central Bus Corporation, supra, wherein it was stated that a director has the burden of showing that any personal dealing with the corporation is fair, in good faith, and for adequate consideration. See Osborne v. Locke Steel Chain Co., supra; Earner v. Fox Hill, Inc., 151 Conn. 437, 441, 199 A.2d 6. Those cases, however, concern contracts or transactions between a corporation and its directors. See General Statutes § 33-323. The facts of the present case do not involve such a contract or transaction. Here, the acts complained of, stock purchases by directors and officers from shareholders of the corporation, are alleged to have been done in derogation of a corporate opportunity. The initial burden is on the plaintiff to prove that there was a corporate opportunity. See Colorado & Utah Coal Co. v. Harris, 97 Colo. 309, 312, 49 P.2d 429. Without such a showing, there is no cause to question the "good faith" or fairness of the officers and directors. "The doctrine of 'corporate opportunity' . is but one phase of the cardinal rule of 'undivided loyalty' on the part of fiduciaries. In other words, one who occupies a fiduciary relationship to a corporation may not acquire, in opposition to the corporation, property in which the corporation has an interest or tangible expectancy or which is essential to its existence." 3 Fletcher, op. cit. § 861.1, p. 208 ; see Burg v. Horn, 380 F.2d 897, 899 (2d Cir.). In a leading case on the corporate opportunity doctrine the Supreme Court of Delaware stated the rule as follows: "[I^f there is presented to a corporate officer or director a business opportunity which the corporation is financially able to undertake, is . . . in the line of the corporation's business and is of practical advantage to it, is one in which the corporation has an interest or a reasonable expectancy, and, by embracing the opportunity, the self-interest of the officer or director will be brought into conflict with that of his corporation, the law will not permit him to seize the opportunity for himself. And, if, in such circumstances, the interests of the corporation are betrayed, the corporation may elect to claim all of the benefits of the transaction for itself, and the law will impress a trust in favor of the corporation upon the property, interests and profits so acquired." Guth v. Loft, Inc., 23 Del. Ch. 255, 272, 5 A.2d 503. In this case, the plaintiff contends that it was an avowed business purpose of T. H. Canty and Company, Inc., to acquire all outstanding stock for reduction to treasury; that that course of conduct had been followed for over thirty years; and that the individual defendants should first have presented the opportunity to purchase stock to the corporation by calling a directors' or shareholders' meeting. That argument is untenable for two reasons. First, the plaintiff has failed to establish that the corporation had an avowed business purpose in purchasing its own stock or that it had an interest or reasonable expectancy in so doing. The trial court found that the "informal agreement" among the directors to defer to the corporation when stock became available was obsolete. Many new directors were never informed of that "understanding" and on some occasions the corporation refused to buy its own stock. The primary business purposes of the corporation were real estate and insurance ventures, not the purchase of its own securities. Indeed, § 33-358 of the Gfeneral Statutes limits the ability of a corporation to acquire its own securities. There is no blanket prohibition against an officer or director's buying securities in his own corporation. See DuPont v. DuPont, 256 F. 129, 132-33 (3d Cir.), cert. denied, 250 U.S. 642, 39 S. Ct. 492, 63 L. Ed. 1185. Ordinarily, a corporation has no interest in its outstanding stock and unless there is some reason or necessity for the corporation to purchase its outstanding stock, an officer or director does not usurp a corporate opportunity by making purchases for his own account. See Equity Corporation v. Milton, 42 Del. Ch. 425, 213 A.2d 439, aff'd, 43 Del. Ch. 160, 221 A.2d 494; Northwestern Terra Cotta Corporation v. Wilson, 74 Ill. App. 2d 38, 219 N.E.2d. 860; Hauben v. Morris, 255 App. Div. 35, 5 N.Y.S.2d 721, aff'd, 281 N.Y. 652, 22 N.E.2d 482; Vulcanized Rubber & Plastics Co. v. Scheckter, 400 Pa. 405, 162 A.2d 400; 3 Fletcher, Private Corporations (Perm. Ed. Rev. 1975) § 862. Second, the corporation became aware at the November 1, 1971, stockholders' meeting that over 2000 stockholders desired to sell their stock. The market price was then the $300 per share offered by the plaintiff. The corporation did not seek to purchase its own stock at that point, however, and for good reason. Its cash on hand and liquid assets were insufficient to enable it to make such a substantial purchase. There can be no expectancy in a transaction unless the corporation is financially able to undertake it. Guth v. Loft, Inc., supra; Hart v. Bell, 222 Minn. 69, 81, 23 N.W.2d 375; Gauger v. Hints, 262 Wis. 333, 352, 55 N.W.2d 426. The trial court was correct in concluding that T. H. Canty and Company, Inc., had no interest in its outstanding stock or in the dealings between its stockholders. The complaint also alleges that the individual defendants used inside information for their own profit and gain in their November, 1971, stock purchases from other shareholders of T. H. Canty and Company, Inc. It has been recognized that inside trading by a corporate fiduciary may be a violation of the common-law duty which he owes to his corporation. Davidge v. White, 377 F. Sup. 1084 (S.D. N.Y.); Brophy v. Cities Service Co., 31 Del. Ch. 241, 70 A.2d 5; Diamond v. Oreamuno, 24 N.Y.2d 494, 248 N.E.2d 910; see also Schein v. Chasen, 478 F.2d 817, 825 (2d Cir.), vacated, sub nom. Lehman Brothers v. Schein, 416 U.S. 386, 94 S. Ct. 1741, 40 L. Ed. 2d 215. In Diamond v. Oreamuno, supra, the New York Court of Appeals held that an officer or director who uses material inside information is accountable to his corporation for gains from transactions in the corporation's stock. In the present case, however, the only "inside information" possessed by the defendants was made public at the November 1, 1971, stockholders' meeting when the $380 and $360 per share stock valuations were disclosed to the stockholders. The defendants also disclosed to the stockholders from whom they purchased stock that they might receive liquidating dividends in excess of the $325 per share that they were offering. Finally, the trial court was unable to ascertain whether the defendants would realize any gain on the shares of stock acquired by them on and after November 24, 1971, since the winding up of the corporation was incomplete and certain contingent liabilities could not be calculated. The plaintiff failed to prove its allegations that the defendants personally gained or that they traded on the basis of inside information. The trial court was correct in concluding that the individual defendants did not violate their fiduciary duty owed to T. H. Canty and Company, Inc. There is no error. In this opinion the other judges concurred. It was noted by the trial court that an affirmative vote of the holders of two-thirds of the voting power of the outstanding shares of stock is ordinarily required to liquidate or to sell substantially all of the corporation's assets. General Statutes § 33-372 (d), 33-376 (c). See also § 10 (b) and 16 (b) of the Securities Exchange Act of 1931, 15 TJ.S.C. § 78j (b) and 78p (b); rule 10b-5 of the Securities and Exchange Commission, 17 CEB § 210.10b-5. In addition, some states have imposed a fiduciary duty on officers and directors to disclose material inside information to the individual shareholders with whom they trade. See, e.g., Jacobsen v. Yaschik, 219 S.C. 577, 155 S.E.2d 601, and other cases collected at note, 7 A.L.K.3d 500.

The plaintiff's "Motion for Permission to File Typewritten Briefs and Appendices and for Order That Plaintiff Shall Not Have to Bear the Expense of Subsequent Printing" in the appeal from the Court of Common Pleas in Fairfield County is granted to the extent that typewritten briefs and appendices may be submitted for use on argument on the condition that briefs and appendices complying with § 723 and 724 of the Practice Book be submitted thereafter for permanent record.

Loiselle, J. The plaintiff sought recovery from the defendant for labor and materials furnished under an oral contract in the first count and in quantum meruit for the same amount in the second count. The defendant, in an affirmative special defense, pleaded payment, and accord and satisfaction. Judgment was rendered for the plaintiff, and the defendant has appealed. The court's finding of facts, which is subject to one correction which will be discussed below, is as follows: On August 22,1967, the plaintiff, a roofing and sheet metal contractor, submitted a proposal to perform certain roofing work on a building being erected by the defendant. The defendant requested a reduction of work to be performed and a reduction of price, and a subsequent oral modification of the August 22 proposal was submitted by the plaintiff to the defendant. Authorization to proceed with the work was given by the defendant. The plaintiff commenced performance under this contract on September 6, 1967, and completed the work on November 24, 1967. A bill was sent to the defendant and it has never been paid. The court also found that the plaintiff had performed work for and under a contract with the defendant's predecessor in interest and title to the apartment building. On October 20, 1967, the plaintiff filed a mechanic's lien for work performed under contract with the defendant's predecessor during the period of December 22,1966, through and including September 21,1967. The creditors of the defendant's predecessor engaged Attor ney Robert A. Slavitt to represent them before and after the defendant took title. Attorney Franklin Melzer represented and was trustee and agent for the defendant during 'this time. The debts existing prior to the defendant's takeover of the building, and only those debts, were negotiated by Attorney Slavitt on behalf of the creditors and by Attorney Melzer on behalf of the defendant. An agreement was reached on these debts on December 4,1967, and payments were made to the plaintiff pursuant to this agreement in exchange for release of his mechanic's lien. The court also found that Attorney Franklin Melzer was available to testify but did not do so. The defendant assigns error in the court's refusal to include in its finding four paragraphs of the draft finding. Two paragraphs are included, one is immaterial, and one is not admitted or undisputed. No additions are warranted. Walsh v. Turlick, 164 Conn. 75, 76-77, 316 A.2d 759. Of the ten paragraphs in the finding attacked by the defendant, all, with one exception, are supported in the appendices. The finding that Attorney Melzer was available to testify is unsupported by the evidence printed in the appendices and must be stricken. Practice Book § 627, 628, 718; Lathrop v. Planning & Zoning Commission, 164 Conn. 215, 217-18, 319 A.2d 376; Kowalczyk v. Kleszczynski, 152 Conn. 575, 210 A.2d 444. The court concluded that the services, labor and materials performed and delivered by the plaintiff had a fair market value of $1943, that the plaintiff was not obligated to perform this work under the contract with the defendant's predecessor, that the agreement of December 4, 1967, did not constitute an accord and satisfaction for the claim of $1943, and that the defendant had wrongfully detained $1943 since November 30, 1967, when the bill was first sent. The court also found that the failure of the defendant to produce Attorney Melzer as a witness led to an inference that his testimony would be adverse to the defendant. This last conclusion must be stricken as it is not supported by the subordinate facts as corrected. Practice Book § 627; Providence Electric Co. v. Sutton Place, Inc., 161 Conn. 242, 245, 287 A.2d 379; Grodzicki v. Grodzicki, 154 Conn. 456, 460, 226 A.2d 656. The defendant argues that the agreement of December 4, 1967, was for all debts owed the plaintiff and that this agreement was an accord and satisfaction of all sums due from the defendant to the plaintiff. The court concluded otherwise. As its conclusions are supported by the subordinate facts found, they must stand. American Can Co. v. Orange Pulp Co., 149 Conn. 417, 422, 180 A.2d 628; Clark v. Hughes, 139 Conn. 696, 698, 97 A.2d 114. The court's, conclusion that the absence of Attorney Melzer created an inference adverse to the defense was in error in that there is no evidence to support a finding that Attorney Melzer was available and that it was within the defendant's power to produce him. See State v. Cobbs, 164 Conn. 402, 424, 324 A.2d 234; Queen v. Gagliola, 162 Conn. 164, 169, 292 A.2d 890. It is established that the party claiming the benefit of the rule on the adverse inference must show that he is entitled to it. State v. Brown, 163 Conn. 52, 58, 301 A.2d 547; Queen v. Gagliola, supra. The ultimate question is whether this erroneous conclusion would affect the other conclusions or the subordinate facts found, and whether this would have been likely to affect the result. Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 316, 268 A.2d 639; Obermeier v. Nielsen, 158 Conn. 8, 13, 255 A.2d 819; Guerrieri v. Merrick, 145 Conn. 432, 435, 143 A.2d 644. Even if the facts found and the court's conclusions were influenced by the adverse inference that Attorney Melzer would not have offered evidence to support the defendant's special defense or to contradict the plaintiff's case, that inference would not be harmful in this instance. This is true in light of the admission in the defendant's brief that "[i]n view of the testimony of attorney Slavitt who identified Franklin Melzer as 'the attorney and agent for Mr. Stoll' and his testimony of all his negotiations with attorney Melzer, there was no necessity to bring in attorney Melzer to testify other than to have him also make gratuitous remarks 'interpreting' a document which on its face is an unambiguous, unequivocal accord between plaintiff and defendant of the claim of this plaintiff against this defendant and his predecessors in interest. Without citation, it is respectfully submitted that the law will not require the doing of a useless act." The court specifically found that the "letter, dated December 4, 1967, was not designed to, nor did it state that it was to resolve all of the outstanding debts of the apartments. The purpose of the December 4, 1967 letter was to resolve those debts that existed as the result of the operation of the defendant's predecessor in interest." These findings were based on the court's interpretation of a document clear on its face and on the testimony of Attorney Slavitt. By the admission of the defendant, the testimony of Attorney Melzer would not have differed from that of Attorney Slavitt and could not have influenced the court's interpretation of the document. Thus, while the drawing of an adverse inference was erroneous, under these particular circumstances, the substance of the inference was valid and its effect was not harmful. The striking of the conclusion referring to the adverse inference of the failure of a witness to testify would not change the result in any way. Kobryn v. Kobryn, 156 Conn. 638, 244 A.2d 411; Taylor v. Taylor, 154 Conn. 340, 341, 225 A.2d 196. There is no error. In this opinion the other judges concurred.

The plaintiff's motion to dismiss the appeal from the Court of Common Pleas for the judicial district of Waterbury is granted.

Loiselle, J. This action was brought seeking an injunction to restrain the town of Newtown, the board of selectmen, and the board of education from acquiring the plaintiffs' property by eminent domain for school purposes. State Referee Frank Covello, to whom the matter was referred, rendered judgment for the defendants and the' plaintiffs appealed. Shortly after the plaintiffs' request for finding and draft finding were filed, and before a. finding could be made, Judge Covello died. The plaintiffs' motion for. a new trial was denied by the court and that denial has been added as a ground of appeal. The admitted pleadings of the complaint state that the plaintiffs are the owners of land which was designated to be taken by eminent domain for school purposes. The defendants relevant to this appeal are the town of Newtown, the board of selectmen and the board of education. It is agreed by the pleadings that the board of education, acting for the town of Newtown, caused to be served upon the plaintiffs' representative a statement of compensation and a notice of taking of their property. The action of the board of education was taken in accordance with General Statutes § 48-5, 10-241a, and 8-129 through 8-133, and was authorized by the vote of a town meeting referendum held December 18, 1970. It is also agreed by the pleadings that there existed in the town of Newtown a committee known as the public building committee, and that the plaintiffs' property was not selected nor approved as a site for the construction of an elementary school by the public building committee. Both the ordinance setting forth the powers of the public building committee and the resolution voted at the referendum granting the board of education the power to take the plaintiffs' land are set forth as exhibits attached to the pleadings. These exhibits are part of the record on appeal. Bonardelli v. Liquor Control Commission, 127 Conn. 708, 710, 16 A.2d 357; Maltbie, Conn. App. Proc. § 319. Both exhibits are admitted by the parties in their pleadings to have been enacted as annexed. The first matter to be determined is whether the court erred in denying the plaintiffs' motion for a new trial. This depends on whether, as the plaintiffs claim, a finding would be necessary to determine the issues raised by appeal. Section 52-268 of the General Statutes allows a new trial where it is shown that a judge has died, and where "the errors claimed to have been committed are of such a nature as fairly entitle the party appealing to a review of such errors by appeal and a review of the errors so assigned cannot otherwise be had, a new trial shall be granted." The procedures to be followed in making such a motion are outlined in Zamatha v. Harak, 134 Conn. 480, 58 A.2d 704. In their motion for a new trial the plaintiffs included issues and claims of error not stated in the request for finding. A fair reading of § 52-268 does not indicate that the statute provides a new and independent vehicle for a new and independent trial, but only a means of obtaining a new trial if the errors claimed by a party in its appeal, which are made a part of the motion, or, where not claimed prior to the death or incapacity of the judge, are recited in the motion, are such that "a review of the errors so assigned cannot otherwise be had." The court was not in error in considering only those errors assigned in the request for finding filed previous to the death of the referee. The request for finding filed December 4, 1972, recited only three questions of law to be reviewed: "1. Did the Court err in concluding that the Town of Newtown could delegate to the Board of Education of Newtown its power of eminent domain for school purposes? 2. Did the Court err in concluding that the Board of Education of Newtown was authorized to exercise powers of eminent domain granted to it by the Town? 3. Did the Court err in overruling the plaintiffs' Claims of Law stated in paragraphs 31-34 of said draft finding?" The first three of these claims of law refer to and are concerned with only the first two questions requested to be reviewed. The fourth claim of law states that "[t]he hoard of education acted arbitrarily and in abuse of its powers in ignoring the recommendations of the Newtown Public Building Committee with regard to potential school sites and in appointing its own site selection committee thus denying to the plaintiffs due process of law." Whether the court should have allowed the additional issue relating to the public building committee need not be determined as the defendants have not excepted to this inclusion. In view of the admissions in the pleadings and the contents of the two exhibits attached to the pleadings which are not contested by the parties, it is clear that the three issues raised by the appeal are matters of law which this court can rule upon without the presence of a finding. The court was not in error in denying the motion for a new trial. The first two questions of law raised in the appeal will be considered together in that they concern the power of the town to delegate its power of eminent domain to the board of education and the authority of the board of education to exercise such power of eminent domain granted to it by the town. On December 18, 1970, a special town meeting voted by referendum to acquire the property of the plaintiffs and to delegate to the board of education the authority and power to acquire the property either by negotiated purchase, or, failing that, to take "all steps necessary to acquire it by the exercise of the Town's power of eminent domain." The resolution also included a recital that school facilities were needed in the western part of the town, that various groups and officers had evaluated possible sites, that another previously selected site had been turned down by a town meeting referendum, and that the board of education had recommended the plaintiffs' property for reasons recited in the resolution. The plaintiffs admitted that the board of education attempted to negotiate with the trustee plaintiff, acting for the remaining plaintiffs. Under General Statutes § 10-240, each town is designated a school district. A town has the same power as a school district in taldng land for schoolhouses and other school purposes. General Statutes § 48-5. It is unquestioned that the town of Newtown had the power to condemn land for an elementary school site, and that at the referendum held on December 18, 1970, the town met all the requirements for such a taldng, pursuant to $ 10-241a of the General Statutes, by fixing the site, finding that the site was necessary, and authorizing a taldng if negotiations failed. It is also unquestioned that although a town has the power to condemn for school purposes, as a municipal corporation it can only act by an agent or by some agency in a taldng to carry out its ministerial duties. See State ex rel. Madigan v. County Commissioners, 124 Conn. 611, 621, 1 A.2d 347; Waterbury v. Macken, 100 Conn. 407, 409, 124 A. 5; Donnelly v. New Haven, 95 Conn. 647, 658, 111 A. 897. Further, § 10-241a provides that "[t]he board, committee or public officer empowered to acquire school sites in such school district shall perform all duties and have all rights prescribed for the redevelopment agency in said sections [8-129 through 8-133] with respect to such taldng." The plaintiffs challenge only the delegation of the town's power of eminent domain to the board of education. They admit that if the power had been exercised by the board of selectmen or by the public building committee it would have been proper and lawful, but they claim that the board of education, as an "agent of the state," cannot act for the town. It is basic that a town board of education is an agent of the state when carrying out the educational interests of the state. Board of Education v. Board of Finance, 127 Conn. 345, 349, 16 A.2d 601; Groton & Stonington Traction Co. v. Groton, 115 Conn. 151, 155, 160 A. 902. However, the members of a board of education are still officers of the town. Keegan v. Thompson, 103 Conn. 418, 423, 130 A. 707. They are also empowered by General Statutes § 10-220 to "perform all acts required of them by the town." This means all acts which may be lawfully required of them by the town. State ex rel. Huntington v. Huntington School Committee, 82 Conn. 563, 566, 74 A. 882. Section 10-220 also charges them to "make a continuing study of the need for school facilities and of a long-term school building program." In Chatfield Co. v. Waterbury, 88 Conn. 322, 327, 91 A. 436, it is stated that the selection and purchase of school sites "are peculiarly within the province of a board of education. It, and it alone of all municipal bodies, possesses a knowledge of present and future educational needs, and has the practical experience in the use of such knowledge." The delegation of power by the town to condemn in its name to the board of education was consistent with the duties of the board of education regarding the educational policy of the state and with its functions directly relating to school facilities. It is certainly a power that the board of education may lawfully exercise where requested by the town meeting to act on behalf of the town. Benham v. Potter, 77 Conn. 186, 189, 58 A. 735. The town of Newtown by its referendum had the right and power to delegate its power to condemn to its board of education, and the board of education, in turn, had the authority to exercise such power. The final issue briefed by the plaintiffs is whether their property can be lawfully acquired as a school site without prior approval of the public building committee of the town of Newtown. The plaintiffs claim in their brief that "appropriation of a site which has been considered and rejected by a public agency whose approval is a prerequisite to the commencement of the building project constitutes a waste of public funds, an abuse of discretion and is contrary to the legislative intent of § 10-291." Only the question of whether the site could have been condemned or appropriated without the prior consent of the building committee will be considered, as the other matters raised are not within the assignments of error and have not been briefed beyond a statement of the claim. Marra v. Kaufman, 134 Conn. 522, 529, 58 A.2d 736. General Statutes § 10-291 states that " [n] o school building project shall be undertaken except according to a plan and on a site approved by the town or regional board of education and by the building-committee of such town." In examining the definition of a "school building- project" in 10-282 and 10-289 of the General Statutes, it is clear that reference in § 10-291 to prior approval by the town board of education and by the building committee of such town is not applicable to the purchase or condemnation of a school building site. Whether "building committee" as used in § 10-291 refers to an existing committee or to one created for the purpose of carrying out a particular school building project need not be determined, as the issue under consideration does not involve a school building project as contemplated by § 10-291. The collateral claim that the ordinance creating the public building committee requires this committee's prior approval of a school building site is not supported by a reading of the ordinance. The ordinance is not exclusive, but permissive. Where the public building committee is empowered to act affirmatively in the taking of options and the purchasing of sites, it must first obtain authorization from a town meeting. Under the ordinance there is no prerequisite to the acquisition of a school site that such site be submitted to or approved by the public building committee. It was within the power of the town meeting to select as a school site a location which was proposed by the board of education and which had not been approved by the public building committee. There is no error. In this opinion the other judges concurred. Upon, learning of Judge Covello's death, the plaintiffs moved for a new trial, claiming the necessity of a finding. The court denied the motion, but because it appeared that Judge Covello had ruled on the matter of the legality of by-passing the Newtown public building committee in the school site selection process, when such issue was not raised by the original pleadings, the court allowed the plaintiffs to plead further as to this narrow issue, and a seventh count was added to the plaintiffs' complaint. The defendants, in answer to the amended complaint, admitted pleadings which they had previously denied and admitted that the plaintiffs' property was not selected nor approved as a site for the construction of the school by the public building committee. "[General Statutes] Sec. 52-268. new trial when judge, stenographer OR COURT REPORTER DIES OR BECOMES INCAPACITATED. . . . A statement of errors which it is claimed occurred in the trial of such case shall be made as a part of such motion. Upon the filing of such motion, the court shall hear the same and, if in its opinion the errors claimed to have been committed are of such a nature as fairly entitle the party appealing to a review of such errors by appeal and a review of the errors so assigned cannot otherwise be had, a new trial shall be granted." "[General Statutes] Sec. 10-282. definitions. . . . 'sehool building project', except as used in section 10-289, means (1) the construction, purchasing, leasing, extension, replacement, furnishing, equipping or major alteration of a building to be used for public school purposes, including the improvement of land therefor, or the improvement of the site of an existing building for public school purposes, but shall not include the cost of a site . . . ." "[General Statutes] Sec. 10-289. issuance of bonds for school building project. As used in this section, 'school building project' means (1) the construction, purchase, extension, furnishing, equipping or major alteration of a building to be used for public school purposes, including the acquisition and improvement of land therefor, with the improvements thereon, if any . . . ."

Longo, J. The plaintiff, James E. Vaill, is the owner of certain land in the town of Salisbury. On August 9, 1971, the defendant, the sewer commission of the town of Salisbury, laid an assessment on the plaintiff's property pursuant to § 7-249 of the General Statutes. On August 7, 1972, one day short of a year from the date of the assessment, the plaintiff brought this action to the Court of Common Pleas in Litchfield County, claiming a judgment rescinding the assessment or, in the alternative, a judgment reducing the amount of the assessment. The defendant pleaded in abatement on the grounds that (1) the court did not have jurisdiction of the action because the claims raised by the complaint can be properly brought to the Court of Common Pleas only by an appeal under General Statutes § 7-250, and (2) the twenty-one day period for filing such appeal had elapsed. The court, in its memorandum of decision, held that § 7-250 provides the right of appeal from the imposition of a sewer assessment, sustained the plea on the ground of the failure to appeal within the statutory period of twenty-one days, and rendered judgment for the defendant from which the plaintiff has appealed. The plaintiff argues that his action is not an appeal from the assessment of his property but is an action for equitable relief from an assessment which is discriminatory, is manifestly excessive, is in disregard of the provisions of the statutes for assessing sewer benefits, and is a taking of the plaintiff's property without due process of law. The sole issue with which we are concerned is whether the action is an appeal governed by the provisions of § 7-250 of the General Statutes and is, therefore, barred by the Statute of Limitations provided therein or whether it is an action for judicial review under the provisions of § 12-119 of the General Statutes. Chapter 203 of the General Statutes entitled "Property Tax Assessment" deals entirely with general taxes and does not relate in any of its sections to assessments for special benefits. Section 12-119, found in chapter 203, relates to the available remedy when real or personal property is wrongfully assessed. On the other hand, chapter 103 of the General Statutes is entitled "Municipal Sewerage Systems," and § 7-249 of that chapter relates specifically to the assessment of benefits to be levied for the construction of municipal sewerage systems, while § 7-250 provides the remedy of appeal to the Court of Common Pleas for any person aggrieved by any assessment. Clearly, the words "any assessment" as used in this chapter apply to any sewerage system assessment. An assessment for benefits is not ordinarily included in the term "taxes." Cortigiano v. Waterbury, 133 Conn. 1, 4, 47 A.2d 413; Whitmore v. Hartford, 96 Conn. 511, 523, 114 A. 686; New London v. Miller, 60 Conn. 112, 116-17, 22 A. 499. "[W]hile an assessment of benefits is an exercise of the taxing power of the State, 'it is never spoken of in charters of cities and boroughs, or in the general law, or in popular . . . [usage], as a tax.' While it is 'in a general sense a tax, it is one of a peculiar nature. It is a local assessment imposed occasionally, as required, upon a limited class of persons interested in a local improvement; who are assumed to be benefited by the improvement to the extent of the assessment.' Bridgeport v. New York & N.H. R. Co., 36 Conn. 255, 262. They stand apart from the general burdens imposed for State and municipal purposes, and are governed by principles that do not apply to the general levy of taxes. In addition to the common taxation, special assess ments demand that speeial contribution, in consideration of a special benefit, shall be made by the persons who receive it. The demand for the special contribution is justified by the fact that those who are to make it, while they are made to bear the cost of the public work, are supposed to suffer no pecuniary loss thereby, because their property is increased in value to an amount at least equal to the sum they are required to pay. 2 Cooley on Taxation (3d Ed.) 1153; 1 Page & Jones, Taxation by Assessment, § 35, 39." Whitmore v. Hartford, supra, 523; see footnote 1, supra. In Peck v. Bridgeport, 75 Conn. 417, 422, 53 A. 893, where the plaintiffs sought to remove a lien as a cloud upon title which arose from an unpaid street assessment, the court sustained the demurrer to the complaint which alleged (1) that the board adopted a wrong rule of assessment and (2) that the plaintiff's land was not benefited by the improvement, as alleged in the present case. This court held that those matters could only avail the plaintiffs upon an appeal from the assessment and could not avail them in the proceedings for the removal of the lien. See Meriden v. Camp, 46 Conn. 284, 290. Section 7-249 authorizes the sewer authority to levy assessments for sewerage systems upon property which, in its judgment, is especially benefited thereby, subject to the right of appeal as provided for by § 7-250. It is the general rule, with reference to special assessments of benefits, that an assessment legally made cannot be attacked in a collateral proceeding but requires pursuit of the statutory remedy for review, unless the assessment is void. 14 McQuillin, Municipal Corporations (3d Ed. Rev.) § 38-188; see Country Lands, Inc. v. Swinnerton, 151 Conn. 27, 33, 193 A.2d 483; e.g., Bianco v. Darien, 157 Conn. 548, 554-55, 254 A.2d 898. In Meriden v. Camp, supra, this court held that where an assessment had been made and the person assessed did not appeal, that person conld later urge only such objections as show a want of jurisdiction. If the commission assesses benefits where a property is not benefited, it commits an error but does not act beyond its jurisdiction. Bennett Estate, Inc. v. New Haven, 117 Conn. 25, 38, 166 A. 680; Terry's Appeal, 67 Conn. 181, 185, 34 A. 1032. Section 7-250 does not limit the grounds for the taking of the appeal, other than that the person taking the appeal shall be aggrieved, and affords such person the opportunity to seek complete judicial relief. Therefore, since § 7-250 provides for a complete remedy by means of an appeal to the Court of Common Pleas whereby the court may exercise its inherent broad equitable powers to confirm or to alter the assessment, that section is the exclusive remedy available to the plaintiff. Cf. Connecticut Ry. & Ltg. Co. v. Waterbury, 127 Conn. 617, 621, 18 A.2d 700; Whitmore v. Hartford, supra, 526-29. Consequently, the trial court was correct in sustaining the defendant's plea in abatement and in rendering judgment for the defendant because the twenty-one day limitation period set forth in the applicable statute had run. There is no error. In this opinion the other judges concurred. Section 7-249 of tlie General Statutes entitled "Assessment of benefits," a part of chapter 103 entitled "Municipal Sewerage Systems," provides: "At any time after a municipality, by its sewer authority, has acquired or constructed, a sewerage system or portion thereof, the sewer authority may levy benefit assessments upon the lands and buildings in the municipality which, in its judgment, are especially benefited thereby, whether they abut on such sewerage system or not, . . . subject to the right of appeal as hereinafter provided. . No assessment shall be made against any property in excess of the special benefit to accrue to such property. . . ." "[General Statutes] Sec. 7-250. . . . appeal. . . . When the sewer authority has determined the amount of the assessment to be levied, it shall file a copy thereof in the office of the clerk of the municipality and . . . shall cause the same to be published in a newspaper having a circulation in the municipality. Such publication shall state the date on which such assessment was filed and that any appeals from such assessment must be taken within twenty-one days after such filing. Any person aggrieved by any assessment may appeal to the court of common pleas for the county or judicial district wherein the property is located . . . ." "[General Statutes] Sec. 12-119. remedy when property wrongfully assessed. When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof . . . prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the court of common pleas of the county in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation . . .

Pabskey, J. The plaintiff is a nontenured, part-time teacher at New Canaan High School, whose position was terminated following a town referendum requiring the defendant to reduce its expenditures for the 1974-75 school year. The plaintiff brought an action seeking a declaratory judgment and a mandatory injunction reinstating her to a teaching position in the New Canaan school system and damages. From the judgment awarding her back pay for the 1974-75 school year only the plaintiff has appealed and the defendant has cross appealed. We find no error. The facts are not in dispute. The plaintiff began teaching in New Canaan in 1972 as a part-time high school French teacher. As a result of the referendum rejecting the proposed school budget the defendant, on August 12, 1974, terminated the only two nontenured teachers at the high school level and replaced a full-time junior high school teacher on leave with a part-time replacement for one year. By letter dated August 14, 1974, the superintendent of the New Canaan school system informed the plaintiff that her position had been eliminated. Subsequently, by letter dated August 30, 1974, the superintendent notified the plaintiff that her employment had been terminated. Previously, he had written to the plaintiff on July 16, 1974, alerting her and others in the same situation of the problem anticipated as a result of the upcoming referendum which later occurred on July 30, 1974, and in which the budget was overwhelmingly defeated, requiring the entire budgetary process to begin again. On October 28, 1974, a formal hearing was conducted at which the plaintiff and her counsel were given a full opportunity to present her views to the board of education. The termination was ratified and she was so notified on November 8, 1974. Finally, on February 26, 1975, the plaintiff was notified that she would not be given a contract for 1975-76 because of staff reductions due to declining enrollments and "various other considerations." The letter further states that although the board of education considers the "termination of contract" instituted prior to the commencement of the school year 1974-75 still in effect, this letter notice is given without prejudice to plaintiff's or defendant's rights in her pending legal action against the board of education. "In other words, this notification is a formality" to remove any question in the plaintiff's mind with regard to defendant's intention concerning her employment in 1975-76. Upon receipt of this letter the plaintiff did not request either a written supplemental statement of reasons for nonrenewal or a hearing before the board of education or an impartial panel. "Section 10-151(a) [of the General Statutes], the relevant portion of what is commonly referred to as the Teacher Tenure Act, imposes three procedural requirements upon a board of education in order properly to decline to renew the contract of a nontennred teacher: (1) the teacher must receive notification prior to March 1 that his contract will not be renewed for the coming school year, (2) the teacher must be furnished, upon request, with a written statement of reasons for the nonrenewal and (3) the teacher must be granted a prompt hearing before the board with counsel of his own choice." Joanou v. Board of Education, 165 Conn. 671, 673-74, 345 A.2d 46 (1974). The procedural requirements for nonrenewal of the plaintiff's contract for the 1975-76 school year were satisfied. The plaintiff was notified in writing of nonrenewal before March 1 and she requested neither clarification nor a hearing. Although the plaintiff claims that the superintendent's non-renewal letter was not shown to have been authorized by the board, the board's earlier action terminating the plaintiff's employment was sufficient authorization for the superintendent's letter. See Mauriello v. Board of Education, 176 Conn. 466, 472, 408 A.2d 247 (1979). "Whether or not ,the board's action was legally efficacious to accomplish the intended result, the board was not precluded thereby from taking whatever measures it deemed necessary not to rehire the plaintiff for the ensuing years. See Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 286, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1971). Once the defendant lawfully exercised its right not to renew the plaintiff's contract the plaintiff, as a nontenured teacher, lost any right that she may have had to be reinstated. The plaintiff asserts that she had a right, upon the elimination of her position, to be transferred to any other position for which she may have been qualified. This we need not consider. If the court was justified in awarding the plaintiff back pay for the 1974-75 school year then the plaintiff has been fully compensated and therefore the question of transfer is of no consequence. The defendant's contention that the board's action in terminating the plaintiff's employment is not subject to judicial review is unsound. "A teacher who is given by statute the right to continued employment except upon a showing of cause or the bona fide elimination of his position; see General Stautes § 10-151 (b); acquires a property right that is entitled to protection under the due process clause." Lee v. Board of Education, 181 Conn. 69, 72, 434 A.2d 333 (1980). Under subsection (a) of § 10-151 a nontenured teacher who has not been given a nonrenewal notice before March 1 may have his contract of employment terminated at any time but only for the same reasons and subject to the same conditions, as set forth in subsection (b), which apply to tenured teachers. Garovoy v. Board of Education, 178 Conn. 618, 622, 424 A.2d 297 (1979). The contractual rights thus created are enforceable either in a simple action for breach of contract or by an action for a declaratory judgment and consequential relief. Light v. Board of Education, 170 Conn. 35, 41, 364 A.2d 229 (1975); Milford Education Assn. v. Board of Education, 167 Conn. 513, 520, 356 A.2d 109 (1975). Whether or not the plaintiff had any statutory recourse by appeal or otherwise for the wrongful termination of her employment she was not precluded from maintaining an appropriate action for breach of contract. Cahill v. Board of Education, 187 Conn. 94, 103, 444 A.2d 907 (1982). Section 10-151 (b) provides that before a board of education may terminate a teacher's contract of employment for reasons therein set forth including "(5) elimination of the position to which the teacher was appointed, if no other position exists to which he may be appointed if qualified" it must give the affected teacher written notice that termination of his contract is "under consideration" and must also give him a hearing if he so requests. The defendant argues that the trial court was being hyperteehnical in giving the phrase "under consideration" a tailis-manic effect. The court was correct in concluding that the statutory language with regard to the procedure for terminating a teacher's contract of employment is unyielding. Although the defendant appears to regard the procedural sequence as a mere formality we do not so view it. Notice before termination and notice after termination are not two sides of the same coin. Once the board has committed itself by its action to a particular result it may be too late in the day to suggest a change of direction; at that stage the urge to proceed along its committed course is compelling. But before the die is east it is still possible for persuasion to affect the result. In any event, the statutory language is clear and unambiguous. We cannot assume that it is meaningless or superfluous. Hopkins v. Pac, 180 Conn. 474, 476, 429 A.2d 952 (1980). We hold that a board of education may not terminate a teacher's contract of employment unless the board first notifies the teacher that such action is "under consideration." There is no error. In this opinion the other judges concurred.

Speziale, C. J. The defendant, Donald J. Chairamonte, was charged with three counts of attempted first degree assault as a result of a series of incidents occurring on the night of May 22, 1978. He was tried to a jury and found guilty of all three counts. From the judgment of guilty, he has now appealed to this court claiming that his sixth amendment right to effective assistance of counsel was denied because (1) his privately retained attorney did not adequately prepare or present an insanity defense; and (2) the trial court forced him to go to trial represented by an attorney other than the one he had already retained, and that second attorney was totally unprepared to try the case. We find no error. The jury could reasonably have found the following facts. At about 10:25 p.m. on May 22, 1978, Lisa DeMattie, who had occasionally dated the defendant, Donald Chairamonte, was walking on Beach Avenue in Milford when Chairamonte stopped his car nearby and asked to speak with her. DeMattie refused to talk to him and ran across the street. The defendant emerged from his auto with a shotgun and fired it in DeMattie's direction. DeMattie ran away, but the defendant caught her and began kissing her, at the same time cutting her back with a knife he was carrying. The defendant then got back into his car and drove away. A short time later, Officer Hanlon of the Milford police attempted to stop the defendant's ear after hearing a police broadcast concerning the assault on DeMattie and describing the car. A high speed chase in excess of eighty miles per hour ensued through Milford and into West Haven. When the defendant's vehicle was finally stopped he jumped out and fired a shotgun through the windshield of Hanlon's police cruiser. After a brief foot chase, the defendant was arrested. I The defendant first claims that the events described above "cr[y] out for a defense based on mental incompetency, insanity or diminished mental capacity," and that trial counsel's failure to assert such a defense deprived the defendant of effective assistance of counsel as a matter of law. It is well established that the sixth amendment right to counsel is a right to effective assistance of counsel, whether that counsel is privately retained or court-appointed. State v. Mason, 186 Conn. 574, 577, 442 A.2d 1335 (1982). The standard used to review claims of ineffective assistance of counsel is whether " 'defense counsel's performance [was] reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.' " State v. Clark, 170 Conn. 273, 283, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976), quoting Gentry v. Warden, 167 Conn. 639, 646, 356 A.2d 902 (1975); see State v. Mason, supra, 577-78; Palmer v. Adams, 162 Conn. 316, 320-25, 294 A.2d 297 (1972). The defendant, however, has the burden " 'to show that his counsel's conduct fell below that standard and that the lack of competency contributed to the conviction.' " State v. Clark, supra. In this ease, the defendant's original counsel did obtain a psychiatric evaluation pursuant to General Statutes § 54-40 of the defendant's competence to stand trial. That examination indicated that the defendant conld understand the proceedings against him and was able to assist in his defense. That counsel also filed a notice that the defendant "may rely upon the defense of mental disease or defect. ." This defense was not pursued at trial. The only indication in the record of the reasons for this decision is the defendant's statement to the psychiatrist that he did not want to use the insanity defense. This case presents a situation in which the record on appeal is inadequate to allow this court to decide whether the defendant was denied effective assistance of counsel. We can imagine many situations in which the decision not to pursue the insanity defense would be entirely correct. Our role in a case like this, however, is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. Without a hearing in which the reasons for counsel's decision may be elicited, any decision of ours on this claim would be entirely speculative. "This court has emphasized in other cases that a claim of ineffective assistance of counsel is more properly pursued on a petition for new trial or on a petition for a writ of habeas corpus rather than on direct appeal. State v. Just, [185 Conn. 339, 370-71, 441 A.2d 98 (1981)]; State v. Barber, [173 Conn. 153, 154-55, 376 A.2d 1108 (1977)]. Absent the evidentiary hearing available in the collateral action, review in this court of the ineffective assistance claim is at best difficult and sometimes impossible. The evidentiary hearing provides the trial court with the evidence which is often necessary to evaluate the competency of the defense and the harmfulness of any incompetency. 'The defendant, his attorney, and the prosecutor have an opportunity to testify at such a hearing as to matters which do not appear of record at the trial, such as . . . whether, for tactical reasons, objection was not made to certain adverse testimony, just how much information the defense attorney received from his client about statements made to others, and other such relevant matters.' State v. Barber, supra, 155." State v. Mason, supra, 578-79. We therefore cannot find error, but our decision "does not preclude the defendant from pursuing this claim in the appropriate collateral action." State v. Mason, supra, 580. II The defendant's second claim is that assistance of counsel was ineffective because he was forced by the trial court to go to trial represented by an attorney other than the one he had already retained, and that second attorney was totally unprepared for trial. The defendant's pretrial counsel was trying another case when the time for this trial arrived. Another attorney from the same firm filed a general appearance on Tuesday, September 11, 1979, to request a continuance, which was denied. On Wednesday, September 12, the court ordered that jury selection commence immediately, but allowed counsel three afternoons and a weekend to prepare for the start of testimony. The court also stated that the defendant could choose to retain new counsel, but that the court would not continue proceedings beyond the following Monday, September 17. The defendant did not choose to retain another attorney, and proceeded to trial. As in the first claim, review of this second claim would be possible only if we were willing to assume facts not before us. The record reveals nothing about the actual skill with which the second attorney presented the defense. Nor do we know enough about the case to determine whether the time allowed for preparation was sufficient. Without an evidentiary hearing on these issues, we cannot decide whether the assistance of counsel was ineffective. We therefore find no error in the court's decision to proceed with the trial. See State v. Mason, supra, 580. There is no error. In this opinion the other judges concurred. General Statutes § 53a-49 (a) (1) and 53a-59 (a) (1). At the time of these proceedings, General Statutes § 54-40 read in part: "competency to stand trial, (a) The officer in charge of any person committed for trial to a community correctional center, on mittimus, bench warrant or appeal, or anyone in behalf of the accused person, shall, if it appears to such officer or to anyone acting in behalf of such accused, at the time of such commitment or before or during the trial, that such accused is so insane or so mentally defective that he is unable to understand the proceedings against him, or to assist in his own defense, immediately present such fact to the judge having jurisdiction of the offense with which such accused is eharged, and such judge shall, on such presentation, or may, on his own motion, if he is of the opinion that the mental condition of the accused is probably so defective that he is unable to understand the proceedings against him or to assist in his own defense, hold a hearing to determine whether the accused is able to understand the proceedings against him and to assist in his own defense, notice of such hearing having been given to the state's attorney or assistant state's attorney of the court having jurisdiction of the offense and to counsel for the accused. "(b) The judge may appoint one or more physicians specializing in psychiatry, who shall examine the accused as to his ability to understand the proceedings against him and to assist in his own defense . . . ." Public Aets 1980, No. 80-313, § 32 transferred § 54-40 to eh. 960, § 54-56d in substantially the same form.

Longo, J. This appeal arose out of an action instituted by Chester R. Golembeske, hereinafter referred to as the plaintiff, against the board of selectmen of the town of New Milford for an order of mandamus to compel the defendants to provide a location within the town for the disposal of sanitary wastes or to make provision for the disposal of such wastes outside the town and to pay all permit fees and service charges incurred thereby. The action was brought to obtain enforcement of the provisions of General Statutes § 19-524n, which requires each municipality to "make provisions for the safe and sanitary disposal of all solid wastes generated within its boundaries . Such disposal may be in areas within its own boundaries or arrangements may be made for the disposing of these wastes in any other municipality." Prom the judgment in favor of the plaintiff granting mandamus the defendants have appealed to this court. The defendants have attacked (1) the court's finding of facts and its conclusions that the town was not in compliance with General Statutes § 19-524n; (2) the jurisdiction of the Superior Court because of the alleged failure of the plaintiff to exhaust his administrative remedies; (3) the remedy of mandamus, claiming it to be improper; and (4) the propriety of the order compelling the town to provide facilities at public expense for private business. A finding of fact is tested by the evidence printed in the appendices to the briefs. Brighenti v. New Britain Shirt Corporation, 167 Conn. 403, 405, 356 A.2d 181. An examination of the appendices reveals that the plaintiff engages in the business of installing and cleaning septic tanks in New Milford and that, owing to changes in circumstances not relevant to the present appeal, he had no place to dispose of his septic tank pumpings within the town's boundaries. Testimony by a defendant selectman amply justifies the finding that the town had "done little or nothing to comply with the statute" in the present case other than to make some inquiries, and that the town did not make any arrangements for the disposal of the solid wastes. The record does disclose that at the time of trial the town of New Milford was engaged in the design and erection of a public disposal system for the handling of solid wastes, including septic tank pumpings, "but it is not expected that such plant will be operational before June 30, 1976 at the soonest." The trial court's conclusions are to be tested by the finding; they must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case. Griffith v. Security Ins. Co., 167 Conn. 450, 454-55, 356 A.2d 94. Pursuant to the facts properly found, the court was justified in concluding that the town was not in compliance with the statute which flatly requires a municipality to make provisions for the disposal of solid wastes. The defendants assign error in the denial of their motion to erase for want of jurisdiction, grounding their claim on the doctrines of primary jurisdic tion and exhaustion of administrative remedies. Although the two doctrines of primary jurisdiction and exhaustion of remedies are not congruent, it is true that neither can operate to oust a litigant from the courts where no adequate remedy may he had by resort to the administrative process. The doctrine of primary jurisdiction is invoked only to determine who will initially decide an issue; 3 Davis, Administrative Law Treatise § 19.01; it cannot operate to divest a court of its ultimate jurisdiction. E.g., United States v. Philadelphia National Bank, 374 U.S. 321, 353, 83 S. Ct. 1715, 10 L. Ed. 2d 915; General American Tank Car Corporation v. El Dorado Terminal Co., 308 U.S. 422, 432-33, 60 S. Ct. 325, 84 L. Ed. 361. Primary jurisdiction is applied in order to ensure that an orderly procedure will be followed, whereby the court will ultimately have access to all the pertinent data, including the opinion of the agency. Far East Conference v. United States, 342 U.S. 570, 574-75, 72 S. Ct. 492, 96 L. Ed. 576. The aim is to prevent disjointed, uncoordinated, and premature decisions affecting policy. Ibid. In the present case, the department of environmental protection has failed to promulgate regulations governing solid waste management, despite the clear requirements of § 19-524c and 4-176 (prior to the adoption of Public Acts 1973, No. 73-620, § 8), so as to provide a party the means of securing the implementation of provisions directly affecting him. Consequently, the plaintiff in the present case was bereft of administrative remedy and had no alternative hut to seek relief by way of judicial process. Rosado v. Wyman, 397 U.S. 397, 406, 90 S. Ct. 1207, 25 L. Ed. 2d 442; Corsino v. Grover, 148 Conn. 299, 308, 170 A.2d 267; 3 Davis, op. cit. § 19.07. The doctrine of exhaustion of remedies concerns the jurisdiction of a court to hear an appeal from a decision of an administrative body. 3 Davis, op. cit. § 20.01. This is not applicable to the present case because no decision was issued by, sought for or available from the department of environmental protection, and hence no question of appealability arises. It should be noted, however, that courts will not require the exhaustion of administrative remedies where no such adequate remedies exist. Bianco v. Darien, 157 Conn. 548, 554, 254 A.2d 898; 3 Davis, op. cit. § 20.07. We next consider the claim that mandamus was not the proper remedy in this case. It has long been recognized that the writ of mandamus is an extraordinary remedy. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60. "The writ of mandamus is designed to enforce a plain positive duty, upon the relation of one who has a clear legal right to have it performed, and where there is no other adequate legal remedy." State v. New Haven & Northampton Co., 45 Conn. 331, 343; see Milford Education Assn. v. Board of Education, 167 Conn. 513, 517, 356 A.2d 109; 2 Antieau, Municipal Cor poration Law § 16.18. General Statutes § 19-524n unmistakably imposes the duty upon a town to make provisions for the safe and sanitary disposal of all solid wastes generated within its boundaries, a burden which the defendants did not meet. Waterbury Teachers Assn. v. Furlong, 162 Conn. 390, 294 A.2d 546; State ex rel. Scala v. Airport Commission, 154 Conn. 168, 176, 224 A.2d 236. Consequently, the plaintiff, who was directly injured by this failure, had a clear legal right to have the duty performed. See Flora Crane Service, Inc. v. Ross, 61 Cal. 2d 199, 390 P.2d 193; Adair County Excise Board v. Board of County Commissioners, 438 P.2d 484 (Okla.); compare Beem v. Davis, 31 Idaho 730, 175 P. 959; Colabufalo v. Public Buildings Commissioner, 332 Mass. 748, 127 N.E.2d 564. In order that another remedy be adequate, it must be equally complete and completely practical. Milford Education Assn. v. Board of Education, supra; State v. Erickson, 104 Conn. 542, 545, 548-49, 133 A. 683; State ex rel. Foote v. Bartholomew, 103 Conn. 607, 618, 132 A. 30; see Wofford v. Porte, 212 Ga. 533, 93 S.E.2d 690; State ex rel. Keystone Laundry v. McDonnell, 426 S.W.2d 11, 15 (Mo.). As described above, the plaintiff has no adequate administrative remedy. State ex rel. Heimov v. Thomson, 131 Conn. 8, 13, 37 A.2d 689. Nor were there any legal remedies as complete or practical, under the circumstances of this case, as the remedy of mandamus, owing to their uncertain, limited, and delayed nature. It has been said that mandamus will lie only to enforce ministerial, but not discretionary, duties. State ex rel. Scala v. Airport Commission, supra, 176; Hannifan v. Sachs, 150 Conn. 162, 167, 187 A.2d 253; State ex rel. Quintard Land Co. v. Hagan, 123 Conn. 383, 385, 195 A. 616; State v. Staub, 61 Conn. 553, 568, 23 A. 924. More precisely, mandamus will lie even if the exercise of the duty involves discretion, so long as existence of the duty is ministerial, and provided that the order issued does no more than require the duty to be performed, leaving the manner of its performance to the good-faith discretion of the official charged. State v. Erickson, supra; State ex rel. Foote v. Bartholomew, supra, 614, 618; Seymour v. Ely, 37 Conn. 103, 106; 17 McQuillin, Municipal Corporations (3d Ed.) § 51.16. The judgment in the present case does no more than to remind the defendants of the law and to direct them to comply without imposing any fetters on deciding the means most appropriate. Evening Sentinel v. National Organization for Women, 168 Conn. 26, 29, 357 A.2d 498. Finally, we come to the defendants' assertion that the second alternative ordered by the mandamus — that the town pay the necessary fees should it decide not to provide the plaintiff a place to dispose of the solid wastes within the town's boundaries — should be barred on the ground that it constitutes an unauthorized public subsidy of private business which would create added public expense. Derby v. Water Resources Commission, 148 Conn. 584, 172 A.2d 907. It is clear that where a statute has a public purpose, such as the public health and safety, it is not to be rendered ineffectual merely because a private individual who would gain an incidental benefit seeks to have it enforced. See Peterson v. Norwalk, 150 Conn. 366, 377, 190 A.2d 33. The trial court's interpretation of § 19-524n, to require the payment of fees and service charges, is entirely logical in the absence of any claim or showing that such fees and charges are unreasonable or discriminatory. The requirement is consistent with the principle that mandamus is controlled by equitable principles. Sullivan v. Morgan, 155 Conn. 630, 236 A.2d 906; see United States ex rel. Greathouse v. Bern, 289 U.S. 352, 359, 53 S. Ct. 614, 77 L. Ed. 1250. There is no error. In this opinion the other judges concurred. The Uniform Administrative Procedure Act, General Statutes H 4-166 — 4-189, has provision for the issuance of emergency regulations if the "agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a regulation upon fewer than twenty days' notice." § 4-168 (b). This provision is not applicable to the present case because the peril is not publie but private in that the plaintiff would have to bear additional costs or cease business operations in the municipality. Ordinarily, an agency should be required to issue emergency regulations only in case of public necessity in order that its considerations be prudently and thoroughly concentrated upon the public purpose rather than clouded by private exigencies. See Rommell v. Walsh, 127 Conn. 16, 21, 22, 15 A.2d 6.

MacDonald, J. This appeal is from a declaratory judgment rendered by the Court of Common Pleas with regard to the disbursement of funds held in trust pending the resolution of this action. The matter was tried to the court upon a stipulation of facts, the relevant parts of which may be summarized as follows: The plaintiff was formerly a recipient of public assistance under the aid for dependent children program, hereinafter APDC, administered by the state welfare department. The defendant White, hereinafter commissioner, is commissioner of the welfare department. Prior to receiving public assistance and thereafter, the plaintiff was the owner of a certain parcel of real property, including a dwelling house which she occupied with her children, in the town of Stonington. In accordance with § 17-82C of the General Statutes, the commissioner caused to be placed upon tbe land records of tbe town of Stonington a lien against tbe plaintiff's property for sucb sums as might become due to tbe state as a result of its having furnished assistance to tbe plaintiff and her children. Sometime prior to October 6, 1970, tbe plaintiff expressed to the commissioner her intention of selling the aforesaid real property. Thereafter, a dispute arose between the plaintiff and the commissioner as to the disposition of the proceeds of the sale of the real property. The property was sold on October 6, 1970, the aforesaid lien was released, and after the state was reimbursed for the amounts due under § 17-82c, it was agreed by the parties that the remaining proceeds of the sale should be placed in a trustee bank account pending determination of the ownership thereof by the Court of Common Pleas. The commissioner claims the entire trust account as repayment for AFDC benefits, pursuant to § 17-83e. The plaintiff, however, claims that in AFDC eases liability to repay from property owned prior to obtaining AFDC is limited to the extent of the lien obtained under § 17-82c. The trial court agreed with the plaintiff's contention and with her further claim that § 17-83e is limited to after-acquired property and ordered the fund disbursed to her, together with whatever interest it had accumulated. The construction placed upon § 17-82c by the trial court ignores the plain meaning of the words contained therein, and thus violates a basic tenet of statutory construction. International Business Machines Corporation v. Brown, 167 Conn. 123, 133, 355 A.2d 236. When language is clear and unambiguous, its meaning is not subject to modification by construction. State v. Simmons, 155 Conn. 502, 504, 234 A.2d 835; Hurlbut v. Lemelin, 155 Conn. 68, 73, 230 A.2d 36. The provision in § 17-82c for the recording of a lien to secure that portion of an AFDC award relating to amortization of a mortgage or other encumbrance is merely a limit upon the security the state may .obtain to ensure repayment of benefits and is not a limit upon the obligation of the beneficiary to repay the full amount of public assistance. This meaning is clearly imparted from • the phrase, "in which ease such lien shall secure the state only . . . ." Words in a statute must be construed according to the commonly approved usage of the language. General Statutes § 1-1; International Business Machines Corporation v. Brown, supra; State v. Briggs, 161 Conn. 283, 286-87, 287 A.2d 369. The crucial word in the above-quoted phrase is "secure." It has a special meaning in the law relative to protection of a debt against existing assets. In this context its meaning is defined in Webster's Third International Dictionary, page 2053, as: "3 . . . (1): to give pledge of payment to (a creditor) (2): to give pledge or payment of (an obligation) . . . ." and in Ballentine's Law Dictionary (3d Ed.), page 1154, as: ". . . To make certain of payment, guaranteeing against the possibility of nonpayment. ." Security is not a limit upon the debtor's duty to repay but merely delineates the extent of assurance of payment to the creditor from the debtor's assets. Thus, the statute is not a bar to repayment of AFDC benefits beyond the amount of the lien. After finding no inconsistency between § 17-82e and § 17-83e, the trial court proceeded to construe § 17-83e as applying only to after-acquired assets. It is obvious from a reading of these two statutes that the legislature intended to accord different treatment to families of beneficiaries of AFDC and to beneficiaries of other forms of public assistance. It already had made provision in § 17-82c for full security for repayment of funds distributed to the latter. The intendment of § 17-83e was to grant to the state a priority claim for full repayment as against after-acquired property. As in the ease of § 17-82c, it is not a limit upon the beneficiary's obligation to repay. Further, § 17-83e has two distinct purposes. In the first part of the first sentence, before the semicolon, it creates a claim inuring to the state and grants that claim priority over other unsecured claims and unrecorded encumbrances. With regard to AFDC cases, the statute continues, after the semicolon, "and, in addition thereto, the parents of an aid to dependent children beneficiary shall be liable to repay to the state the full amount of any such aid paid to or in behalf of either parent, his spouse, and his child or children." That is, in addition to the claim given to the state against after-acquired property, the legislature has imposed upon parents of AFDC beneficiaries the liability to repay the state in full for benefits awarded. Such a construction is entirely consistent with the intendment of § 17-82c. Thus, the effect of § 17-82c is to secure to the state repayment, in AFDC cases, of whatever amounts represent the amortization of the mortgage or other encumbrance upon the homestead owned prior to obtaining benefits, the legislature recognizing the need to maintain a proper home for AFDC beneficiaries. The effect of § 17-83e in AFDC cases is to allow a claim against after-acquired property, "and, in addition thereto," to impose a full liability on the beneficiary's parents to repay to the state the benefits awarded above and beyond, or despite the lack of, any after-acquired property. The net effect of § 17-83e in the present case, therefore, is to enable the state to pursue an action for the repayment of total AFDC assistance. It does not give the state the power to make a summary seizure of the proceeds involved herein, thus circumventing the procedural formalities of the normal civil action for repayment of a .debt and giving rise to possible due process deprivations. There are adequate procedures with regard to prejudgment remedies which can secure the total amount owing to the state pending the acquisition of a judgment upon which the state would be entitled to make execution on the funds held in the trust account. The construction we place upon these statutes is in alignment with the underlying purpose for which they were intended — the recoupment of public assistance funds from those now able to make repayment. The legislature and the courts recognize that public assistance grants to those in need are a worthy necessity. No less necessary is the availability of funds to these programs and it is for this purpose that the legislature has enacted such provisions as those under consideration. This was recognized recently by the United States District Court for the district of Connecticut, discussing § 17-83e and 17-83f in McDougald v. Norton, 361 F. Sup. 1325, 1328 (D. Conn.): "In view of the severe shortage of public assistance funds and the ever mounting demands on them, there is certainly a bona fide governmental interest in recouping such funds from persons who subsequently receive funds from other sources." Although the trial court was mistaken in its construction of the statutes, it was correct in concluding that the balance of the money being held in trust, plus accrued interest, should be disbursed to the plaintiff. It was error, however, for the court, having arrived at this determination, to go beyond the declaratory judgment requested and to render judgment for the plaintiff with an order to disburse to the plaintiff. There is error in the form of the judgment, it is set aside and the court is directed to render judgment, in accordance' with the relief sought, declaring that the funds in question, presently held in trust, together with accumulated interest should be disbursed by the trustees to the plaintiff. In this opinion the other judges concurred. "[General Statutes] Sec. 17-82c. eligibility of person having INTEREST IN REAL PROPERTY. LIEN OF STATE. No person shall be deemed ineligible to receive an award under this chapter for himself or for any person for whose support he is liable by reason of having an interest in real property, maintained as his home, provided the equity in such property shall not exceed the limits established by the commissioner. The commissioner may place a lien against any property to seeure the claim of the state for all amounts which it has paid or may thereafter pay to him or in his behalf under the provisions of this chapter, except for property maintained as a home in aid to families of dependent children cases, in which case such lien shall seeure the state only for that portion of the assistance grant awarded for amortization of a mortgage or other encumbrance beginning with the fifth month after the original grant for principal payment on any such encumbrance is made, and each succeeding month of such grant thereafter. The claim of the state shall be secured by filing a certificate in the land records of the town or towns in which any such real estate is situated, describing such real estate. Any such lien may, at any time during which the amount by it secured remains unpaid, be foreclosed in an action brought in a court of competent jurisdiction by the commissioner on behalf of the state. Any real estate to which title has been taken by foreclosure under this section, or which has been conveyed to the state in lieu of foreclosure, may be sold, transferred or conveyed for the state by the commissioner with the approval of the attorney general, and the commissioner may, in the name of the state, execute deeds for such purpose. Such lien shall be released by the commissioner upon payment of the amount by it secured, or an amount equal to the value of the beneficiary's interest in such property if the value of such interest is less than the amount secured by such lien, at his discretion, and with the advice and consent of the attorney general, upon a compromise of the amount due to the state. At the discretion of the commissioner the benefieiary, or, in the ease of husband and wife living together, the survivor of them, so long as he or she lives, or a dependent child or children, may be permitted to occupy such real property." "[General Statutes] Sec. 17-83e. claim of state foe bepayment of aid. If a beneficiary of aid under this chapter acquires property of any kind or interest in any property, estate or claim of any kind, the state of Connecticut shall have a claim, which shall have priority over all other unsecured claims and unrecorded encumbrances, against such beneficiary for the full amount paid to him or in his behalf under said chapter; and, in addition thereto, the parents of an aid to dependent children beneficiary shall be liable to repay to the state the full amount of any such aid paid to or in behalf of either parent, his spouse, and his child or children. In the case of any claim made after October 1, 1959, the claim for medical payments, even though such payments were made prior thereto, shall be restricted to medical disbursements actually made for care of any such beneficiary."

The defendant's "Motion to Compel a Finding or Proceed on the Record and Transcript" filed in connection with his motion for a review of bail in his appeal from the Superior Court for the judicial district of Waterbury is granted to the extent that the trial court is directed to file with this court a finding, such as circumstances permit, setting forth the basis for its ultimate conclusion, including any claims of law made together with its conclusions thereon. Victor M. Ferrante and, of the New York bar, William M. Kunstler, in support of the motion. Submitted March 12 decided March 19, 1975

The defendant's petition for certification for appeal from the Appellate Session of the Superior Court is denied by the court.

It appearing that the appeal in the above-entitled case has not been pursued with proper diligence, it is, under Practice Book § 696, ordered by the Supreme Court, suo motu, that the appeal be and hereby is dismissed.

The defendants' motion for leave to amend his petition for certification pursuant to § 746 of the Practice Book is granted.

The plaintiff having done nothing to defend against the defendants' appeal from the judgment of the Superior Court in New Haven County since the defendants' brief was filed in November, 1973, the defendants' motion for judgment sustaining their appeal is granted.

Bogdanski, J. Gregory Fulton, Rodney Kyles and Charles Williams were charged in separate informations with conspiracy to commit robbery in the first degree in violation of § 53a-48 of the General Statutes and with robbery in the first degree in violation of § 53a-134 (a) (2) of the General Statutes. The three defendants were tried together. Fulton and Kyles were found guilty of conspiracy to commit first degree robbery and of first degree robbery. Williams was found guilty of conspiracy to commit robbery in the second degree and of rob bery in the second degree. On appeal all three defendants claim that the court erred in its charge to the jury. We find this claim to be dispositive. Only a brief statement of the facts is necessary for the purposes of this appeal. Shortly after nine o'clock on the evening of January 23, 1977, Edward Funaro, after closing Visel Drugstore on Dixwell Avenue in New Haven, walked towards his car carrying a metal cash box which contained approximately $10,000 in cash and $2400 in checks. As he was proceeding to the car, he was distracted by a noise, turned to look, and saw a figure pointing something at him. He then heard a squirting noise and felt something liquid hit him. He was thereafter attacked and struck on the head, went limp, and the cash box was snatched from him. He later described the blow as being inflicted by something "harder than a fist" but he did not know what the object was. The blow caused a gash which required seven stiches to close. Immediately after being attacked Funaro got up from the ground and yelled to Michael Pacelli, a fellow employee who had left the store with him and who had headed towards his own car parked some distance away. In response Pacelli ran in the direction in which the assailants were fleeing, A short distance away he noticed a parked car with one person in the driver's seat, and another person hurriedly getting into the car. Pacelli noted the color, make, and license number of the car as it left the scene. A short time later, a car matching the one Pacelli described was found by the police. It was locked, its hood was warm, and the ignition lock appeared not to have been tampered with. The police then went to the nearby apartment of the registered owner of the car where they arrested the defendants. They found the metal cash box containing checks made out to Yisel's Drugstore in a bedroom and a .38 caliber gun in the defendant Kyle's possession. At the conclusion of the trial, the court instructed the jury that if they found any one of the defendants guilty of a certain degree of robbery they would have to find him guilty not only of conspiracy but of the same degree of conspiracy. The court attempted to correct that portion of the charge by subsequently instructing the jury that they could convict on the charge of robbery while acquitting on the conspiracy charge and vice versa. The court did not, however, instruct the jury that if they did find any of the defendants guilty of a robbery and a conspiracy that they did not have to find him guilty of the two crimes in the same degree. That is, the court failed to instruct the jury that the degree to which any defendant was guilty of the substantive crime of robbery and the substantive crime of conspiracy to commit robbery must be independently determined. None of the defendants took exception to this portion of the charge. Only exceptional circumstances will save a claim, constitutional or otherwise, from the consequences of a defendant's failure to make a timely objection. State v. Briggs, 179 Conn. 328, 332, 426 A.2d 298, cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980); State v. Rogers, 177 Conn. 379, 418 A.2d 50 (1979); State v. Adams, 176 Conn. 138, 406 A.2d 1 (1978); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The policy behind this rule "does not permit a defendant in a criminal case to fail, whether from a mistake of law, inattention or design, to object to matters occurring during a trial until it is too late for them to be corrected or even considered and then, if the outcome proves unsatisfactory, to raise them for the first time on an appeal." State v. Taylor, 153 Conn. 72, 86, 214 A.2d 362, cert. denied, 384 U.S. 921, 86 S. Ct. 1372, 16 L. Ed. 2d 442 (1966); State v. Evans, supra, 66; State v. Tuller, 34 Conn. 280, 295 (1867). Where, however, the record adequately supports a claim that the defendant has been deprived of a fundamental constitutional right and a fair trial, this court will review the claimed error. State v. Evans, supra, 70. Thus, despite the defendants' failure to raise this issue below we address it because of the claim that the challenged portion of the charge misled the jury thereby depriving the defendants of their right to a fair trial; State v. Rose, 169 Conn. 683, 688, 363 A.2d 1077 (1975); and review may be made upon the record. State v. Chesney, 166 Conn. 630, 353 A.2d 783 (1974); State v. Evans, supra. To determine whether an error in a charge constitutes reversible error, the court must consider the whole charge. Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); State v. Piskorski, 177 Conn. 677, 746, 419 A.2d 866 (1979); State v. Roy, 173 Conn. 35, 40, 376 A.2d 391 (1977); State v. Crawford, 172 Conn. 65, 69, 372 A.2d 154 (1976); State v. Ralls, 167 Conn. 408, 422, 356 A.2d 147 (1974). In appeals not involving a constitutional question the court must determine whether it is reasonably probable that the jury were misled; State v. Ralls, supra; State v. Tropiano, 158 Conn. 412, 427, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d 288 (1970); Penna v. Esposito, 154 Conn. 212, 215, 224 A.2d 536 (1966); Allard v. Hartford, 151 Conn. 284, 292, 197 A.2d 69 (1964); and, in appeals involving a constitutional question, whether it is reasonably possible that the jury were misled. State v. Annunziato, 169 Conn. 517, 532, 363 A.2d 1011 (1975); see also Gilbert v. California, 388 U.S. 263, 268, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1966); 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). On the other hand, "[a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statements but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case; Amato v. Desenti, 117 Conn. 612, 617, 169 A. 611 [1933]." State v. Harris, 172 Conn. 223, 226, 374 A.2d 203 (1977). The charge should be examined to see whether it fairly presents the case to the jury so that no injustice is done under the rules of law to the legal rights of the defendant. Farlow v. Connecticut Co., 147 Conn. 644, 648, 166 A.2d 202 (1960); Pratt, Read & Co. v. New York, N. H. & H. R. Co., 102 Conn. 735, 741, 130 A. 102 (1925). Moreover, "the charge must he considered from the standpoint of its effect on the jury in guiding them to a proper verdict." State v. Bell, 153 Conn. 540, 544, 219 A.2d 218 (1966). The issue, then, is not whether the verdict is supported by the evidence; rather it is whether the jury were misled by the charge. State v. Rose, supra, 689. Viewing the charge as a whole, as we must; Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 570, 316 A.2d 394 (1972); State v. Tropiano, supra, 433; we are compelled to conclude that the jury were left with the impression that if they found the defendants guilty of robbery in the first degree and they found them guilty of conspiracy, they would have to find them guilty of conspiracy to commit robbery in the first degree. Similarly, if they found the defendants guilty of robbery in the second degree and they found them guilty of conspiracy, they would have to find them guilty of conspiracy to commit robbery in the second degree. We conclude that the court's charge did not meet the requirement that "[t]he instructions to the jury . be accurate in law, adapted to the issues and adequate to guide the jury in reaching a correct verdict." Berniere v. Kripps, 157 Conn. 356, 358, 254 A.2d 496 (1969); State v. Crowe, 174 Conn. 129, 134-35, 384 A.2d 340 (1977). One other matter merits consideration: as already noted, § 53a-134 (a) (2) requires proof that a defendant or another participant in the crime was armed with a deadly weapon. Our examination of the record reveals that there was no evidence what soever offered to show that a deadly weapon was used in the commission of the robbery. The court therefore erred in admitting the gun into evidence. We have also examined the constitutional claims of each defendant that the trial court erred in denying each defendant's respective motion to dismiss and suppress and conclude that the court did not err in its denial of the motions. Because of the necessity of a new trial, the remaining issues briefed by the defendants do not require discussion. There is error in the three appeals, the judgments are set aside except as to the third count of the Kyles' judgment, and a new trial is ordered. In this opinion Cotter, C. J., Peters and Healey, Js., concurred. Section 53a-48 of the General Statutes provides in pertinent part: "(a) 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." Section 53a-134 of the General Statutes provides in pertinent part: "(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . (2) is armed with a deadly weapon." Kyles was also charged and convieted of carrying a revolver without a permit in violation of § 29-35 of the General Statutes. The claimed error, if any, as to this count, however, has not been pursued and is therefore considered abandoned. All three defendants have also briefed issues concerning the state's comments on an adverse inference, the admission into evidence of a gun and a can of Halt, and fourth amendment claims regarding their arrests and the seizure of evidence. Kyles and Williams have also raised a Bruton issue; Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) ; concerning an incriminating statement made by Fulton to the police. Williams and Fulton have raised a double jeopardy issue and Fulton has raised a Wharton rule issue; see Iannelli v. United States, 420 U.S. 770, 773, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975); concerning his conviction on the conspiracy count. Because of our disposition of this case we need not consider any of these issues with the exception of the one relating to the admissibility of the gun. "In other words, ladies and gentlemen of the jury panel, if you decide that any one of the accused are guilty of committing robbery in the first degree, you would also find them guilty of conspiracy to commit robbery in the first degree. If you find that they would be guilty of robbery in the second degree, you would find that they would be guilty of a conspiracy to commit robbery in the second degree. And, that would also apply to robbery in the third degree. "But, let's not lose sight of the fact that you may, in your own good will, find the defendants not guilty of any crime. "In other words, what I am saying to you is that you cannot find anybody guilty of a robbery and not guilty of a conspiracy. You cannot find a conspiracy without a robbery. . . . "Now, as I explained to you, if you do not find that a robbery is committed in the first degree, you eannot find a conspiracy to commit that robbery in the first degree. If you find that a robbery in the first degree was committed and that the accused are guilty as charged, they will also be guilty of the charge of conspiracy to commit robbery in the first degree. But, you cannot find a conspiracy to commit robbery in the first degree and a not guilty on robbery in the first degree. I hope you understand that. "Now, if you find them not guilty of these charges in the first degree, then, as I explained to you, lesser included offenses of robbery in the second degree and conspiracy to commit robbery in the second degree must be considered. . . . "Perhaps by way of example, I might say to you this that should you decide that the defendants are guilty of say robbery in the third degree, you find him guilty of robbery in the third degree and conspiracy to commit robbery in the third degree, you would not have to consider larceny at all as far as the specific charge of larceny by possession—Pm sorry, maybe I might have missed that. I guess I didn't." "I think I also told you that in trying to straighten out in your minds, and in mine, what your findings could be as a result of the guilt or innocence of these charges, perhaps I might not have explained it to you sufficiently. I would like to point out to you that you may find the accused, individually or collectively, or I shouldn't say collectively, but individually guilty of the charge of conspiracy and robbery, but you may find him guilty of the charge of robbery but not conspiracy. I hope I have that straight. It could be either or. It could be either finding them guilty of conspiracy, not guilty of robbery; finding of guilty on robbery and not guilty on conspiracy. I hope you understand it could be either or. Certainly a finding of not guilty of any of the charges."

Per Curiam. The plaintiff, a development company, has appealed from an order dissolving an ex parte prejudgment attachment of real property. In the first and second counts of its complaint, the plaintiff charged that the defendant Gunther, who had owned certain real estate upon which the plaintiff had made extensive repairs, was liable for the value of this work on the grounds of unjust enrichment and implied contract. The third count charged both the defendant Gunther and his daughter Mindy Drew, to whom he had sold the property for $190,000, with conspiracy to convey the property fraudulently and with the intention of avoiding the debt owed the plaintiff. On this ground the plaintiff applied for and received an ex parte prejudgment attachment of the property acquired by the defendant Drew. After a hearing on the defendants' motion to dissolve the attachment, the court ordered the attachment dissolved. The plaintiff has appealed from the order of dissolution, charging that the trial court erred (1) in applying the wrong standard of law and the wrong quantum of proof in concluding there was no probable cause to sustain the validity of the plaintiff's unjust enrichment claim; and (2) in finding there was insufficient evidence to establish probable cause to sustain the plaintiff's claim of a fraudulent conveyance. Since the second issue is dispositive of the right to a prejudgment attachment against the defendant Drew, we need not address the first claim. We find no error. The theory of fraudulent conveyance is necessarily the linchpin of the plaintiff's claim to a prejudgment attachment of the property, now owned by the defendant Drew, for a debt which the plaintiff alleges is owed solely by the defendant Gunther. "A grantor has an interest in property fraudulently conveyed which may be reached by attachment"; Olin Corporation v. Castells, 180 Conn. 49, 52, 428 A.2d 319 (1980); "if proper legal proceedings are taken to appropriate it to the satisfaction of the grantor's debts." Murphy v. Dantowitz, 142 Conn. 320, 326, 114 A.2d 194 (1955). The attachment, of course, must be placed upon the grantee's interest in the property which has been acquired by the fraudulent conveyance. See Olin Corporation v. Castells, supra, 52-53. A fraudulent conveyance for the purpose of attachment is one made without substantial consideration and which renders the debtor unable to meet his obligation or one made with a fraudulent intent in which the grantee participated. Town Bank & Trust Co. v. Benson, 176 Conn. 304, 307, 407 A.2d 971 (1978); Genovese Coal Co. v. River Bend Builders, Inc., 146 Conn. 48, 51-52, 147 A.2d 193 (1958). Once the prejudgment attachment was challenged the burden of demonstrating probable cause to sustain the claim of a fraudulent conveyance was upon the plaintiff. General Statutes § 52'-278d (a); Augeri v. C. F. Wooding Co., 173 Conn. 426, 428, 378 A.2d 538 (1977); Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 584, 376 A.2d 60 (1977). Specifically, the plaintiff had to adduce evidence either that Gunther had conveyed the property for less than substantial consideration and was thereby rendered unable to pay the alleged debt or that the conveyance was made with a fraudulent intent in which Drew participated. The plaintiff contends that the trial court erred as a matter of law in failing to find probable cause to sustain its claim. In his affidavit in support of the ex parte attachment, William Denison, president of the plaintiff corporation, stated that Gunther had transferred the property to Drew "with the intent of avoiding payment . . . for the benefit conferred and with the intent of hindering the collection of money owed for the goods, services and labor provided by the plaintiff," and that both defendants had refused to pay for the improvements on the property despite demands for payment. According to the plaintiff, these allegations were unchallenged at the hearing and, therefore, established probable cause as a matter of law. We disagree. Only two witnesses testified at the hearing, Den-ison and the defendant Gunther. Instead of substantiating the statements in the plaintiff's affidavit, Denison's testimony negated his claim of actual fraudulent intent. Denison stated that the transfer of the property could be classified as a "sale" and indicated his belief that the sale was for tax purposes. Counsel for the plaintiff admitted the conveyance was a "sale" and a "bona fide transaction." Moreover, the testimony of neither witness revealed any indicia of fraudulent intent. There was also no evidence that Gunther was insolvent or without the financial resources to pay the debt he allegedly owed. Although the transfer was between family members, the transfer was for adequate consideration. The sale price of $190,000 was the same as that in an earlier agreement made by Gunther for the sale of the property to a prospective purchaser who defaulted. It also was reasonable in light of Denison's concession that a substantial investment would be needed to finish the renovations his company had begun. We conclude that the evidence was such that the trial court cannot be said to have erred in finding that the plaintiff failed to demonstrate probable cause to sustain its claim of fraudulent conveyance and that, therefore, the prejudgment attachment was properly dissolved. There is no error. Testimony revealed that the crux of the plaintiff's fraudulent conveyance claim was an alleged brokerage agreement by which the defendant Gunther was to permit the plaintiff to list the property for $240,000 and to retain an undetermined percentage of the sale. The plaintiff conceded that the transfer to Drew for $190,000 did not violate that agreement. Denison continued to list the property for an unspecified period of time after the transfer, but the listing agreement was eventually withdrawn by Drew. The plaintiff's claim against Drew was only for the purpose of attachment and it did not claim that Drew was directly liable for work done on the property. There was no evidence adduced as to why the listing agreement ultimately was withdrawn by Drew.

Passkey, J. The plaintiffs, Candido D'Occhio, Donato Gaetani and Bertram Perlman, by writ, summons and complaint dated March 5, 1975, after due notice to the defendant commission, brought suit against William Braman Pease alleging that Pease, as a real estate salesman for Florida Unlimited, Inc., a real estate broker licensed to do business in the state of Connecticut, had appropriated substantial sums of their money for his own use through fraud and misrepresentations. The plaintiffs moved for an order of notice alleging that the whereabouts of Pease were unknown, and that Pease was a fugitive from justice and was wanted by the Connecticut state police. Pursuant to the motion, the court issued an order of notice directing that the notice most likely to come to the attention of Pease would be service by registered mail in eare of his wife, Tiencke Pease, at her home address in Florida. The registered letter was returned unclaimed on March 22, 1975. The original complaint was brought in three counts, one for each of the plaintiffs. Upon receiving notice of the lawsuit, the commission intervened on May 2, 1975, whereupon the complaint was amended by adding a fourth count which repeated in reduced form the allegations against Pease and also contained additional allegations reflecting the interest of the commission. Thereafter, the plaintiffs moved for a subsequent order of notice to Pease by publication and, pursuant to court order, notice of the pendency of the action was published in the Hartford Courant on May 22, 1975. On October 27, 1975, the court granted the plaintiffs' motion for default against Pease for failure to appear. On December 12, 1975, the court, Missal, J., after a hearing in damages, rendered a judgment upon default against Pease on behalf of the plaintiffs in varying amounts. No appeal was taken from this judgment. On February 20, 1976, the commission filed an answer and several special defenses addressed to the fourth count of the complaint. Thereafter, on January 25, 1979, the commission moved to "reopen" (sic) the judgment upon default entered against Pease. This motion was denied by the court, Sidor, J., on April 10, 1979, and no appeal was taken. On October 12, 1979, the court, Bieluch, J., ruled that the commission's special defenses, having been filed postjudgment, could not prevail in the plenary action against Pease; it also dismissed the fourth count. No appeal was taken from this action. On May 26, 1976, the plaintiffs filed in the Superior Court a verified claim, a copy of which had been served on the commission on May 20, 1976, seeking an order directing payment out of the Real Estate Guaranty Fund for amounts unpaid on their judgment against Pease. The commission filed an answer and several special defenses. The hearing, which was held after the entry of judgment in the plenary aetion, was limited by the trial court to the issue whether the activities of the parties came within the purview of General Statutes § 20-324e (b). The court, Wright, J., decided this issue in favor of the plaintiffs D'Occhio and Gaetani and against the plaintiff Perlman. In its appeal the commission challenges the court's aetion in restricting the hearing to the question of whether the activities of the parties came within the purview of the Real Estate Guaranty Fund statute. It also claims that the judgment in the plenary action was invalid for lack of personal jurisdiction over Pease, that the transactions between the plaintiffs and Pease did not come within the purview of ^ 20-324a and that the plaintiffs' actions were not brought within the limitation period prescribed by § 20-324d. In his cross appeal Perlman challenges the court's conclusion that his dealings with Pease did not come within the purview of § 20-324a. I The Real Estate Guaranty Fund; General Statutes § 20-324a through 20-324g; authorizes the commission to establish a fund to compensate persons aggrieved by the defalcations of real estate brokers, their real estate salesmen or employees and creates a procedure pursuant to which such aggrieved persons may collect from the guaranty fund. The statute; § 20-324e; contemplates two separate proceedings, a plenary action resulting in a valid money judgment against the agent and a secondary proceeding for the purpose of collecting from the fund any unpaid amount of the judgment in the plenary action. When an action is commenced nnder the statute the plaintiff is required to notify the commission which then has the right to enter an appearance, intervene in or defend the action. General Statutes §20-324e (a). Section 20-324g authorizes the commission to "enter an appearance, file an answer, appear at the court hearing, defend the action or take whatever other action it may deem appropriate on the behalf and in the name of the defendant and take recourse through any appropriate method of review or appeal on behalf and in the name of the defendant(Emphasis added.) The commission argues that the statute authorizes the commission to intervene on its own behalf as a protector of the guaranty fund or to appear and defend on behalf and in the name of the defendant. We do not agree. Section 20-324g specifically limits the commission's right of intervention. The commission seizes on the phrase "intervene in or defend" contained in subsection (a) of § 20-324e as affording it a choice of intervening independently or on behalf of the agent. The disjunctive "or" can be construed as "and" where such construction clearly appears to have been the legislative intent. Dana-Robin Corporation v. Common Council, 166 Conn. 207, 221, 348 A.2d 560 (1974). When the disjunctive phrase relied on by the commission is read together with § 20-324g, which specifically gives the commission only a derivative party status in the plenary action, it is clear that the legislature used the word "or" in the phrase in question in a conjunctive sense. II In the secondary action the commission filed a plea in abatement challenging the jurisdiction of the court on the ground that the judgment obtained in the plenary action was invalid for lack of jurisdiction over Pease. The court, Kelly, J., ruled correctly that the question whether the court had personal jurisdiction over Pease in the principal action went to the merits of the secondary proceeding and not to the court's jurisdiction to hear and determine the issues involved in that proceeding. The commission thereafter filed a special defense in which it alleged the invalidity of the judgment in the principal action for lack of jurisdiction over Pease due to a defective service of process. Although the trial court, Wright, J., limited the hearing in the secondary proceeding to the question whether the transactions between the plaintiffs and Pease came within the purview of the guaranty fund statute, because the validity of the judgment in the plenary action is an essential element which the plaintiff must show in the secondary proceeding and because a lack of personal jurisdiction over Pease might render that judgment void, we address that issue here. The commission's claim that the judgment in the plenary action is invalid for lack of personal jurisdiction over Pease is without merit. The basis of the commission's claim is that service of the complaint by mail or publication did not conform with the requirements of the statute, in that service of the complaint was not made upon the secretary of the state nor did the copy of the complaint mailed to the defendant contain an endorsement by the officer that such service had been made and therefore was defective. Because Pease had engaged in business in this state and, after the transactions alleged in the complaint, had left the state for parts unknown, he could be subjected to personal jurisdiction under the long-arm statute, § 52-59b. This statute provides for the officer to serve a true and attested copy of the complaint upon the secretary of the state and to send to the defendant, by registered or certified mail, postage prepaid, a like true and attested copy with an endorsement thereon of the service upon the secretary addressed to the defendant at his last-known address. "The requirement that the copy be mailed to the defendant at his 'last-known address' does not mean the last address known to the plaintiff but does mean the last address of the defendant so far as it is known, that is, by those who under the ordinary circumstances of life would know it." Hartley v. Vitiello, 113 Conn. 74, 80, 154 A. 255 (1931). Sending a copy by registered mail to Pease's wife, under the circumstances of the case, would satisfy the "last-known address" requirement. Id. To satisfy the constitutional requirements of due process for in personam jurisdiction there must be a basis for jurisdiction and sufficient notice. Anderson v. Schibi, 33 Conn. Sup. 562, 565, 364 A.2d 853 (1976). A basis for jurisdiction exists if it can be shown that the defendant has "certain minimum contacts with [the state] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945). The commission does not challenge the fact that there was a basis for the trial court's jurisdiction over Pease under the long-arm statute. Nor is there any reason to doubt that the methods used here for giving notice, under the circumstances of this case, satisfied the constitutional requirement of due process. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 317, 70 S. Ct. 652, 94 L. Ed. 865 (1950). A notice mailed to the wife of a missing person is one that in the ordinary course of events is reasonably certain to reach the addressee. Notice of this nature is adequate whether or not actually received by the addressee. 1 Restatement (Second), Judgments § 2, comment c. In the ease of persons missing or unknown, notice by publication, though indirect and probably futile, also satisfies constitutional standards. Mullane v. Central Hanover Bank & Trust Co., supra, 317. There being both a basis for jurisdiction and adequate notice to meet constitutional requirements, the fact that the plaintiffs did not comply with the statutory requirements is an irregularity which did not render the notice inadequate. 1 Restatement (Second), Judgments § 2, comment e, illustration 4. Such irregularities may render the judgment void able but not void. See Orcutt's Appeal from Probate, 61 Conn. 378, 381, 24 A. 276 (1892). Voidable judgments are not subject to collateral attack. Jensen v. Nationwide Mutual Ins. Co., 158 Conn. 251, 260, 259 A.2d 598 (1969); Rathkopf v. Pearson, 148 Conn. 260, 265, 170 A.2d 135 (1961). The commission's effort in the secondary proceeding to challenge the irregularity of service upon Pease in the plenary action was ineffective because it was a collateral attack. General Dynamics Corporation v. Groton, 184 Conn. 483, 493-94, 440 A.2d 185 (1981). m The trial court, Bieluch, J., relying on Arizona Real Estate Department v. Arizona Land Title & Trust Co., 9 Ariz. App. 54, 449 P.2d 71 (1968), ruled that questions relating to the faet and amount of the agent's liability could be raised by the commission only in the principal action, but that questions relating to the liability of the fund, such as whether the transactions between the parties came within the purview of the statute, could be addressed in the secondary proceeding. The trial court, Wright, J., on the basis of this ruling, limited the trial in the proceeding that is the subject of this appeal to the "purview" issue. Because our guaranty fund statute virtually tracks the Arizona statute we find Arizona Beal Estate Department most persuasive. Subsection (c) of § 20-324e sets out six requirements which the applicant must satisfy in order to secure a recovery from the fund. First, he must show that he is not the spouse or personal representative of the spouse of the judgment debtor. Second, he must demonstrate that he has complied with all of the requirements of §20-324e. Third, he must establish that he has obtained a judgment as set out in subsection (b) of this section. Finally, fourth, fifth and sixth, unless this requirement is dispensed with by the court, he must show that he has exercised due diligence in attempting to obtain recovery of his damages from the agent. The type of judgment set out in subsection (b) is one that is against a real estate broker or real estate salesman or the unlicensed employee of any such real estate broker for loss or damage sustained by reason of, inter alia, embezzlement or fraud. The two proceedings contemplated by the guaranty fund statute serve separate functions. The plenary action against the agent establishes the fact and amount of his liability. Because this is an essential first step to securing a recovery from the fund the commission is required by statute, §20-324e (a), to receive notice of the commencement of the action and is bound by the result. Arizona Real Estate Department v. Arizona Land Title & Trust Co., supra, 58-59. This is so whether or not the commission exercises its right of intervention. Id. "In the suit against the real estate broker or salesman, it is immaterial whether the factual predicates for recovery against the fund have occurred; we do not believe that this statute, permitting intervention, mandates that these issues, completely collateral to that plenary action, be injected into it." Id. There are practical reasons why the plenary action should be treated as an ordinary action for conversion. Not every case brought against a broker for misappropriation necessarily involves recovery from the fund. The broker may successfully defend the suit or he may fully satisfy any judgment against him. In each of these situations intervention by the commission may entail a waste of commission resources. Furthermore, the introduction into the broker's trial of issues which are irrelevant to the broker's liability would only complicate that trial with little or no saving for the litigants or the judicial process. See note, "The Real Estate Recovery Fund: Constitutional and Procedural Critique of an Illinois Remedy," 56 Chicago-Kent L. Rev. 401 (1980). The trial court was correct in reserving for the secondary action against the fund such factual issues as the status of the agent and the reason for the loss. Since those issues were adjudicated by the court in connection with its determination that the activities of the parties came within the purview of the statute, we address those issues at this point. The parties stipulated that at all times relevant to this action Florida Unlimited, Inc., held a valid Connecticut license as a real estate broker and that William Braman Pease did not hold a valid Connecticut license either as a real estate salesman or broker. The trial court, applying the long recognized principle that the existence of an employer-employee relationship depends on whether the employer has retained the right to control the means and method of work; Spring v. Constantino, 168 Conn. 563, 573, 362 A.2d 871 (1975); found that Pease was an employee of Florida Unlimited. The court found that when he was hired Pease signed and worked under the same contract agreement with Florida Unlimited as did other salespeople with the firm and that clause 13 of that contract gave the company control over its salespersons, that business cards were provided for Pease by Florida Unlimited as was stationery and office space, that, at one point, Pease was designated as the company's manager for Marco Island Florida properties, including those which the plaintiffs attempted to purchase, and that he was also named salesman of the year by the company. The trial court further found that D'Occhio's first contact with Florida Unlimited was in the spring of 1972, at which time he learned that the company had an exclusive franchise with Deltona Corporation to sell Marco Island properties in Connecticut. In July, 1972, he met Pease for the first time in his Florida Unlimited office. All additional meetings with Pease took place in that office. At all times Pease represented himself as being an agent of Florida Unlimited. D'Occhio was informed by others working for Florida Unlimited that he was the only person in the company who was dealing with industrial property in Florida and that he was the best salesman that they had. The employee representation was further supported by Pease's giving D'Occhio a business card giving the Florida Unlimited address as his business address. Following a trip to Florida to see the property which Pease had in mind for him, D'Occhio purchased an interest in the property through Pease. He gave Pease a cashier's check for $10,000, and signed a participation agreement with Pease in the Florida Unlimited office. Although no reference to Florida Unlimited was made in the agreement, the address used by Pease was that of the corporation. The agreement was signed September 28, 1972. Other evidence indicates that Pease was employed by Florida Unlimited from June, 1972, until October, 1973, at which time he was requested to leave. The court concluded that Pease was acting as a salesman for Florida Unlimited at the time of his dealings with D'Occhio and that the activities of Pease and D'Occhio eame within the purview of the guaranty fund statute. With respect to Gaetani, the trial court found that Gaetani met Pease in the fall of 1972, at which time Pease again represented himself as an employee of Florida Unlimited. As with D'Occhio, Pease provided his client with a Florida Unlimited business card, organized a trip to Florida so he could see the land they were discussing, and provided him with brochures, all indications of his employee status with Florida Unlimited. Gaetani also received a wealth of information on Florida Unlimited and Deltona stationery, including annual statements and congratulatory letters. Gaetani decided to purchase six lots. The purchase and sale agreements were completed by Pease in his Florida Unlimited office on Marco Island Development Corporation forms. On each of these documents Pease gave as his address the same address in West Hartford as that of Florida Unlimited. On the basis of these agreements Gaetani paid Pease $20,000. In August, 1973, Gaetani received a letter from Pease stating that payment had been made on the land. The letterhead used was that of Broome & Co. The participation agreement between them was then drawn np by Pease in his Florida Unlimited office. Both parties signed it, Pease explaining that Broome & Co. was a subsidiary of Deltona. At that time Graetani also received notice from Peter Wolf, general manager of Florida Unlimited, that payment on his lots was six months in arrears. Accepting. Pease's explanation that a computer error had been made, Graetani paid Pease an additional $5000. According to Wolf, participation agreements were not permitted at Florida Unlimited, yet Pease had all his clients sign one. The court concluded that while Pease was acting as an employee of Florida Unlimited when their dealings began, as shown by the acknowledgments by Florida Unlimited and Deltona of Graetani's purchases, he was no longer acting in that capacity by the time the participation agreement was signed. Thus there were two transactions. The first concerned the purchase and sale agreements which resulted, in the $20,000 payment, at which time Pease was using the Florida Unlimited address, business cards and stationery, and the second involved the $5000 payment wherein Pease was using Broome & Co. for his business name. The court concluded that the first transaction came within the purview of the statute whereas in the second transaction Pease was acting as an independent contractor. Respecting Perlman, the court found that although Perlman met Pease in his Florida Unlimited office and did business with him there, there was no conclusive evidence that Pease was acting as an employee of Florida Unlimited at the time Perlman paid him $23,000. There is no indication of an employee relationship with Florida Unlim ited in any of the documents submitted in evidence. Pease gave still another address in the participation agreement. Interest checks paid to Perlman as a result of the agreement were made out on Broome & Co. stationery. The court concluded that the transaction between Perlman and Pease was not within the purview of the statute. "On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. See Practice Book, 1978, § 3060D. This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous." Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). Applying the foregoing standard, we cannot conclude that the trial court's decision was clearly erroneous in any of the cases. In the cases of D'Occhio and Gaetani, although the commission focuses on the participation agreements as the inducement for the transfer of money that was ultimately embezzled by Pease, the court found that in D'Occhio's case the entire payment and in Gaetani's case $20,000 of the $25,000 was paid for the purchase of Marco Island properties. At no point in its brief does the commission argue that the court's findings of fact are not supported in the evidence or that the conclusions do not flow legally and logically from these facts. In Perlman's case the claim is that since the transaction between Perlman and Pease occurred at the office of Florida Unlimited at a time when Pease was its employee, then he was at the very least acting with the apparent authority of his employer. We do not agree. "[Ajpparent authority is to be determined, not by the agent's own acts, but by the acts of his principal. And the acts of the principal must be such that (1) the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted him to act as having such authority, and (2) in consequence thereof the person dealing with the agent, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority." Nowak v. Capitol Motors, Inc., 158 Conn. 65, 69, 255 A.2d 845 (1969). "The issue of apparent authority is one of fact, requiring the trier of fact to evaluate the conduct of the parties in light of all of the surrounding circumstances. [Citations omitted.] Only in the clearest of circumstances, where no other conclusion could reasonably be reached, is the trier's determination of fact to be disturbed." Lettieri v. American Savings Bank, 182 Conn. 1, 9, 437 A.2d 822 (1980). No such disturbance is warranted by the facts of this case. There is no evidence that Wolf or any other officer of Florida Unlimited authorized Pease to use the participation agreement or knew of its existence. To the contrary Wolf testified, and the court found, that such agreement was not authorized. Nor is there any evidence that Wolf or any other officer of Florida Unlimited authorized or knew of the use of "Broome & Co." as a mechanism for the sale of its Florida properties. In fact, Broome & Co. turned out to be a figment of Pease's imagination. Nevertheless, the company had eon- ferred such sweeping authority on Pease with respect to the sale of its Deltona property, to the extent of designating him as Marco Island Development Corporation manager, that the trial court would have been justified in finding that Pease's use of the "Broome & Co." ploy for the sale of Del-tona property was within his apparent authority, but it was not bound to do so. IY The commission claims that D'Occhio's action against Pease was not brought within the limitations of §20-324d. This section provides: "No action may be commenced to recover damages under [this statute] which might subsequently result in an order for collection from said guaranty fund, later than two years from the accrual of the cause of action thereon." The commission pleaded this statute as a special defense in the recovery action. It claims that the statute began to run in 1972 when the plaintiffs paid over moneys to Pease. The plaintiffs for their part contend that the statute did not begin to run until their discovery of Pease's defalcation in 1973. The court did not address this problem in the erroneous belief that the matter had been determined at an earlier stage of the proceedings. Since the guaranty fund statute of limitations is a good defense to the secondary action and since it had been properly pleaded it should have been addressed. The statute of limitations in the guaranty fund statute; §20-324d; is addressed to the action brought against the real estate agent. "The general rule is that where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone." DeMartino v. Siemon, 90 Conn. 527, 528-29, 97 A. 765 (1916). The action against the agent is not created by statute but rather exists at common law and therefore the limitations statute is merely a bar to the enforcement of a particular remedy. See L. G. DeFelice & Sons, Inc. v. Wethersfield, 167 Conn. 509, 512, 356 A.2d 144 (1975). If a plaintiff who has a claim against a real estate broker for conversion is unconcerned about collecting his judgment out of the guaranty fund he can bring his action within the three years provided by General Statutes § 52-577 for actions founded on tort. The defense of that statute must be raised, if at all, in the plenary action. If, on the other hand, he desires the certainty of collectibility to the extent of $10,000 out of the guaranty fund, he must bring himself within the two year time bar. Section 20-324d is a limitations statute based on the accrual of a cause of action. "Applied to a cause of action, the term to accrue means to arrive; to commence; to come into existence; to become a present enforceable demand." Eising v. Andrews, 66 Conn. 58, 64, 33 A. 585 (1895). With certain exceptions not pertinent here, in cases involving the misappropriation of funds of another, the right of action will accrue at the time of the defalcation; State ex rel. McClure v. Northrup, 93 Conn. 558, 563, 106 A. 504 (1918); unless the statutory period is extended as a result of fraudulent concealment; General Statutes § 52-595; in which case the cause of action will not accrue until its existence is dis covered by the injured party. Eising v. Andrews, supra. Of course, for a plaintiff to rely on the fraudulent concealment statute it must be pleaded. Rosenblatt v. Berman, 143 Conn. 31, 39-40, 119 A.2d 118 (1955). No such pleading was filed in this ease. Of course, upon a new trial the plaintiffs would not be precluded, with the permission of the trial court, from filing an appropriate amendment to their pleadings. There is no error in the cases of Oaetani and Perlman; there is error in the case of D'Occhio, the judgment in this ease is set aside and a new trial is ordered limited to the question whether the plaintiff brought his action against Pease within the time limitations prescribed by General Statutes ^ 20-324d; if, upon this issue, the court finds that the action against Pease was brought within the time limitations of § 20-324d, judgment is to be rendered that the plaintiff recover of the defendant commission the amount of damages found due him in the judgment appealed from; but if, upon this issue the court shall find that the action was not so brought, then judgment is to be rendered finding the issues for the commission. In this opinion the other judges concurred. "[General Statutes] Sec. 20-324a. real estate guaranty fund. The Connecticut real estate commission is authorized and directed to establish and maintain a real estate guaranty fund from which, subject to the provisions of sections 20-324a to 20-324j, inclusive, any person aggrieved by any action of a real- estate broker or real estate salesman, duly licensed in this state under section 20-312, by reason of the embezzlement of money or property, or money or property unlawfully obtained from any person by false pretenses, artifice, trickery or forgery or by reason of any fraud, misrepresentation or deceit by or on the part of any such real estate broker or real estate salesman or the unlicensed employee of any such real estate broker, may recover, on order of the court, compensation in an amount not exceeding in the aggregate the sum of ten thousand dollars in connection with any one transaction or elaim, regardless of the number of persons aggrieved or parcels of real estate involved in such transaction or elaim." "[General Statutes] Sec. 20-324b. fee payable to fund. Any person who receives a real estate broker's or real estate salesman's license for the first time shall pay an additional fee of twenty dollars in addition to all other fees payable, which additional fee shall be credited to the real estate guaranty fund, provided in no case shall any real estate broker or salesman be required to pay said fee of twenty dollars more than once." "[General Statutes] Sec. 20-324c. level of guaranty fund, credits to general fund. Said commission shall maintain said real estate guaranty fund at a level not to exceed two hundred seventy-five thousand dollars and to this intent moneys received under section 20-324b shall be credited to said guaranty fund whenever the fund balance is below two hundred seventy-five thousand dollars and any such moneys may be invested or reinvested in the same manner as funds of the state employees retirement system, and the interest arising from sueh investments shall be credited to the general fund. Any moneys received under said section 20-324b not required to maintain said real estate guaranty fund balance shall be deposited to the general fund. All moneys in the guaranty fund in excess of two hundred seventy-five thousand dollars, on May 19, 1976, shall be transferred by the treasurer to the general fund." "[General Statutes] Sec. 20-324d. limitation of actions. No action may be commenced to recover damages under sections 20-324a to 20-324j, inclusive, which might subsequently result in an order for collection from said guaranty fund, later than two years from the accrual of the cause of action thereon." "[General Statutes] Sec. 20-324e. procedure, (a) When any aggrieved person commenees any action under sections 20-324a to 20-324j, inclusive, for a judgment which may result in collection from said guaranty fund, the aggrieved person shall notify said commission in writing to this effect at the time of the commencement of such action. Said commission shall have the right to enter an appearance, intervene in or defend any such action. "(b) When any aggrieved person recovers a valid judgment in the superior court against any real estate broker or real estate salesman or the unlicensed employee of any such real estate broker for loss or damages sustained by reason of the embezzlement of money or property, or money or property unlawfully obtained from any person by false pretenses, artifice, trickery or forgery or by reason of any fraud, misrepresentation or deceit by or on the part of such real estate broker or salesman or the unlicensed employee of any such real estate broker, such aggrieved person may upon the final determination of, or expiration of time for appeal in connection with, any judgment, file a verified claim in the superior court for the judicial district of Hartford-New Britain or in the superior court for the judicial district in which the aggrieved person resides or the superior court in which such judgment was entered and, upon ten days' written notiee to said commission, may apply to such court for an order directing payment out of said guaranty fund of the amount unpaid upon the judgment, subject to the limitations stated in section 20-324a and the limitations specified in this section. "(c) The court shall proceed upon such application in a summary manner, and, upon the hearing thereof, the aggrieved person shall be required to show: (1) He is not a spouse of the debtor, or the personal representative of such spouse; (2) he has complied with all the requirements of this section; (3) he has obtained a judgment as set out in subsection (b) of this section, stating the amount thereof and the amount owing thereon at the date of the application; (4) he has caused to be issued a writ of execution upon said judgment and the officer executing the same has made a return showing that no personal or real property of the judgment debtor liable to be levied upon in satisfaction of the judgment could be found, or that the amount realized on the sale of them or of such of them as were found, under the execution, was insufficient to satisfy the judgment, stating the amount so realized and the balance remaining due on the judgment after application thereon of the amount realized; (5) he has made all reasonable searches and inquiries to ascertain whether the judgment debtor is possessed of real or personal property or other assets, liable to be sold or applied in satisfaction of the judgment; (6) that by such search he has discovered no personal or real property or other assets liable to be sold or applied, or that he has discovered certain of them, describing them, owned by the judgment debtor and liable to be so applied, and that he has taken all necessary action and proceedings for the realization thereof, and that the amount thereby realized was insufficient to satisfy the judgment, stating the amount so realized and the balance remaining due on the judgment after application of the amount realized. "(d) Whenever the aggrieved person satisfies the court that it is not practicable to comply with one or more of the requirements enumerated in subdivisions (4), (5) and (6) of subsection (c) of this section and that the aggrieved person has taken all reasonable steps.to collect the amount of the judgment or the unsatisfied part thereof and has been unable to collect the same, the court may in its discretion dispense with the necessity for complying with such requirements. "(e) The court shall make an order directed to said commission requiring payment from the real estate guaranty fund of whatever sum it shall find to be payable upon the claim, pursuant to the provisions of and in accordance with the limitations contained in this section and section 20-324a, if the court is satisfied, upon the hearing, of the truth of all matters required to be shown by the aggrieved person by subsection (c) of this section and that the aggrieved person has fully pursued and exhausted all remedies available to him for recovering the amount awarded by the judgment of the court. "(f) If said commission pays from said fund any amount in settlement of a claim or toward satisfaction of a judgment against a licensed real estate broker or real estate salesman pursuant to an order under subsection (e), the license of the broker or salesman shall be automatically revoked and no such broker or salesman shall be eligible to receive a new license until he has repaid in full, plus interest at the rate of four per cent a year, the amount paid from said guaranty fund on his account. A discharge in bankruptcy shall not relieve a person from the penalties and disabilities provided in this subsection. "(g) If, at any time, the money deposited in said guaranty fund is insufficient to satisfy any duly authorized claim or portion thereof, said commission shall, when sufficient money has been deposited in said guaranty fund, satisfy such unpaid claims or portions thereof, in the order that such claims or portions thereof were originally filed, plus accumulated interest at the rate of four per cent a year." "[General Statutes] Sec. 20-324f. penalty for false or untrue claim. Any person filing with the commission any notice, statement or other document required under the provisions of section 20-324e which is false or untrue or contains any material misstatement of fact shall be fined not less than two hundred dollars." "[General Statutes] Sec. 20-324g. procedure for commission. When said commission receives notice, as provided in section 20-324e, it may enter an appearance, file an answer, appear at the court hearing, defend the action or take whatever other action it may deem appropriate on the behalf and in the name of the defendant and take recourse through any appropriate method of review or appeal on behalf and in the name of the defendant." A void judgment is an invalid judgment. Even such a judgment, if it is a domestic judgment of a court of general jurisdiction, may not be vulnerable to collateral attack unless it is entirely invalid and that fact is disclosed by an inspection of the record itself. Lampson Lumber Co. v. Hoer, 139 Conn. 294, 297-98, 93 A.2d 143 (1952); 1 Freeman, Judgments (5th Ed.) p. 602. A voidable judgment, on the other hand, remains in full force and effect as a valid judgment until set aside in a direct proceeding. Lampson Lumber Co. v. Hoer, supra, 299; Hurlbut v. Thomas, 55 Conn. 181, 183, 10 A. 556 (1887); Coit v. Haven, 30 Conn. 190, 199 (1861); 46 Am. Jur. 2d, Judgments § 48. In its brief the commission concedes that Gaetani's action was brought within the statutory time limits.

The petition by the defendant J. William Burns for certification for appeal from the Appellate Court, 5 Conn. App. 663, is denied.

Hull, J. After a trial to a jury, the defendant was found guilty of four counts of larceny in the second degree, a violation of General Statutes § 53a-119 (8) and 53a-123 (a) (1). In his appeal from the judgment rendered on the verdicts, the defendant claims the trial court erred in four respects: (1) in refusing to suppress the fruits of a search the police conducted of his garage; (2) in permitting the assistant state's attorney to make derogatory remarks about him during closing argument; (3) in allowing the state to amend the information during trial to cure a defect; and (4) in denying his motion for judgment of acquittal on the basis of the insufficiency of evidence. We find no error. On January 8,1982, detectives Gerald O'Donnell and Frank Bradley of the Cheshire police department, on the basis of information provided by two informants, obtained a warrant to search the buildings on the defendant's property in East Haven, exclusive of his home. On the same day, O'Donnell and Bradley, accompanied by five other police officers, executed the warrant and seized from the defendant's garage a 1978 maroon Ford pickup truck, a 1979 blue Ford pickup truck, a 1979 dual wheel Ford pickup truck, and two Connecticut license plates, one of them mutilated. Prior to trial, the defendant moved to suppress these items and others seized during a subsequent search of his property, claiming that the items taken on January 8 were seized unlawfully and that those seized later, on January 11, were the fruits of that first unlawful seizure. The trial court denied the defendant's motion. The defendant makes three separate arguments in support of his claim that the trial court erred in denying his motion to suppress. In the first, he asserts that the warrant under which the officers searched his garage was not based on probable cause. " 'Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed.' State v. Middleton, 170 Conn. 601, 604, 368 A.2d 66 (1976)." State v. Ralston, 7 Conn. App. 660, 673, 510 A.2d 1346 (1986). There is probable cause to search where " '(1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.' (Emphasis in original; citations omitted.) State v. DeChamplain, [179 Conn. 522, 528-29, 427 A.2d 1338 (1980)]; see State v. Arpin, [188 Conn. 183, 448 A.2d 1334 (1982)]." State v. Delmonaco, 194 Conn. 331, 337, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984). In determining whether a warrant was lawfully issued, the reviewing court must consider only the information that was before the magistrate or judge at the time he or she signed the warrant. State v. Ralston, supra, 671. Here, the affiants, O'Donnell and Bradley, provided the following information in their affidavit in support of the warrant: On January 2,1982, O'Donnell received a phone call from a confidential informant who had previously provided reliable information to the police. The informant told O'Donnell that during the week of December 28, 1981, to January 1, 1982, he had been in the defendant's garage on route 80 near the North Branford-East Haven line visiting one of the defendant's employees who was a friend. The employee told the informant that the defendant was involved in stealing new trucks and, in furtherance of that activity, altered their vehicle identification numbers. The informant also related that while in the garage he saw three trucks, two of which were black and one of which was red. He was told by the employee that one of the three trucks had been stolen in Cheshire during the week of December 20,1981. Finally, the informant told O'Donnell that the defendant was running an electrical business out of his garage. On January 4, 1982, O'Donnell received a call from detective Ralph Puglia of the West Haven police department who said that an unnamed informant told him that the defendant had three pickup trucks in his garage, at least two of which were stolen. According to the informant, one of the trucks was stolen from North Branford while another was stolen from a Ford dealership located near routes 10 and 42 in Cheshire. The informant thought that the name of the dealership was Academy Ford. Three days later, the Cheshire police received a complaint from the sales manager at Dowling Ford, Inc., regarding a missing black Ford pickup truck bearing the vehicle identification number (VIN) 2FTCF10EGCCA20229 which he believed had been stolen from the dealership's parking lot. Dowling, which was previously named Academy Ford, is located on route 10 in Cheshire approximately 200 yards from route 42. In an attempt to verify some of this information, Bradley contacted the department of motor vehicles and Southern New England Telephone Company and discovered that the defendant lived in East Haven, and had a phone listing for an electrical business at his home address. On the basis of the information given in the affidavit, a reasonable man could justifiably believe that the black Ford pickup truck with the VIN 2FTCF10EGCCA20229 was the subject of criminal activity and that it would be found in the defendant's garage. The first unnamed informant told the police that he had been at the defendant's garage within a week before the warrant was sought and that while he was there he had seen three trucks, two of which were black. He also stated that he had been told by a friend, one of the defendant's employees, that the defendant altered VIN numbers on stolen trucks and that one of the trucks then in the garage had been stolen in Cheshire during the week of December 20. This information was reinforced by information relayed by the West Haven police from the second informant who, only four days before the police sought the warrant, told them that the defendant had three trucks, two of them stolen, in his garage, and that one of the trucks had been stolen from Academy Ford. Finally, the day before the warrant was issued, the police received verification that during the time frame given by the employee, a black pickup truck with the VIN 2FTCF10EGCCA20229 had been stolen from Dowling Ford, Inc. This information, coupled with police corroboration of details provided by the informants, was sufficient to establish probable cause to believe that the black pickup truck was stolen and that it was then in the defendant's garage. It is, of course, axiomatic that the authority who issues the warrant, not the affiants, must determine whether probable cause exists to support the warrant. State v. DeChamplain, supra, 528. In the usual case, the requirement that the issuing authority independently determine probable cause presents no special problem. Where, however, a warrant is sought based on hearsay information provided by an informant who is unnamed and, therefore, unknown to the issuing authority, the magistrate may be hampered in the independent assessment of probable cause. Accordingly, the United States Supreme Court has established, and our Supreme Court has adopted; State v. Kimbro, 197 Conn. 219, 235-36, 496 A.2d 498 (1985); the two-prong Aguilar-Spinelli test for determining whether or not the judge or magistrate was entitled to authorize a warrant based on information provided by an informant. See Spinelli v. United States, 393 U.S. 410, 415, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). Under the Aguilar-Spinelli test, the magistrate or judge may credit information provided by an unnamed individual only where the affidavit discloses some of the underlying circumstances from which the informant derived his information and some of the underlying circumstances from which the affiant determined either that the informant was credible in general or that the information he provided was reliable on the occasion in question. Aguilar v. Texas, supra, 114; State v. Kimbro, supra, 235-36. The information given by the first unnamed source passes the Aguilar-Spinelli test. The informant acquired part of his or her information through personal observation, and the magistrate was, of course, entitled to find a reliable basis of knowledge for that portion of the information. See State v. Jackson, 162 Conn. 440, 446, 292 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972). The informant, however, also related information which was not derived from personal observation, that provided by the defendant's employee. Accordingly, we must also determine whether the trial court was entitled to find that the employee had a reliable basis for his knowledge. See Spinelli v. United States, supra, 425. (White, J., concurring.) Here, there were factors from which the magistrate could have inferred that the employee had a reliable basis for his knowledge. While the affidavit did not contain an express statement that the employee acquired his information from personal observation, it strongly indicated that he did. The employee worked for the defendant and, although it is not clear what position he held, it is clear from the affidavit that he had access to the garage, the site of the alleged ille gal activity. Accordingly, the authority issuing the warrant could reasonably infer that the employee had a reliable basis for his or her knowledge. The credibility requirement of Aguilar-Spinelli was also fulfilled. Bradley and O'Donnell recited in their affidavit that the informant had previously provided reliable information to the police. "The previous reliability of an informant, though not constitutionally required, is a basis for crediting his information." State v. Romano, 165 Conn. 239, 244, 332 A.2d 64 (1973). The affidavit also contained sufficient detail from which the magistrate could reasonably infer that the information provided was reliable on this particular occasion. The reliability of an informant's knowledge may be shown in several ways: (1) if the police corroborate some of the information; (2) if the informant makes declarations against penal interest; or (3) if the defendant has a reputation or a past criminal record consistent with that suggested by the informant. State v. Ferguson, 185 Conn. 104, 113, 440 A.2d 841 (1981). Here, the first of these factors was present. The police verified some of the information: that the defendant lived in East Haven, that he conducted an electrical business from his home address and that a black pickup truck had been stolen around the time the informant saw a black truck in the defendant's garage. Finally, the information that the defendant was stealing pickup trucks was repeated by the second informant. "Dovetailing of information from different sources also provides corroboration." State v. Ralston, supra, 673. In light of these factors, there was a sufficient basis for the magistrate to evaluate whether or not the information provided by the first unnamed police source should be believed and, accordingly, to make an independent determination of the existence of probable cause. It is less clear whether the Aguilar-S'pinelli requirements were satisfied as to the information provided by the second informant. The affiant did not expressly state the basis of the second informant's knowledge. A reliable basis of knowledge may, however, be inferred if the person providing the information gives the type of detail that would be available only to one who derived his information either in person or through other reliable means. Spinelli v. United States, supra, 416. Here, the second informant did provide the type of detail that indicates a reliable basis of knowledge. He stated that the defendant had three, four-wheel drive pickup trucks in his East Haven garage, located near the North Bran-ford line, that one of the trucks was stolen from North Branford and another from a Ford dealership near routes 10 and 42 in Cheshire, possibly named Academy Ford. Additionally, some of this information was corroborated by the police or by information given by the first informant. Under the circumstances, we cannot say that the issuing authority erred by concluding that there was a reliable basis for the second informant's knowledge. The information in the affidavit supporting the "credibility" or "reliability" prong of the test, however, was minimal. The affiants did not even claim that the second informant had previously provided reliable information or even that he was previously known to the police. There was, of course, corroboration of some of the information the second informant provided: that a truck had recently been stolen from Academy Ford and that there were three trucks in the defendant's garage. We need not, however, determine whether this corroboration alone was sufficient to show the reliability of the information. Even if the information provided by the second informant did not alone satisfy the Aguilar-Spinelli test, the issuing authority, contrary to the defendant's contention, was not required to ignore that information entirely when determining whether there was probable cause for the warrant to issue. State v. Delmonaco, 194 Conn. 331, 341, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984) (reviewing court need not ignore tip that alone did not satisfy Aguilar-Spinelli when determining whether affidavit sufficient to establish probable cause). "We note in this connection that it is not necessary that all the information listed in the affidavit meet this test. As long as one or more of the informants, taken singly or together, establish probable cause as gauged by Aguilar-Spinelli, the affidavit is sufficient to justify the issuance of the [warrant]." (Emphasis added.) State v. Ralston, supra, 674. As discussed above, the information provided by both unnamed informants taken together did establish probable cause to search the defendant's garage. Accordingly, the search warrant was lawfully issued and, therefore, the trial court did not err in denying the defendant's motion to suppress on this basis. The defendant next argues that the fruits of the search of his garage should have been suppressed because the warrant issued violated the particularity requirement of the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution. The warrant the defendant challenges authorized the police to seize "Trucks, (a 1982, Ford Pickup truck, color black, model F-100, style Flair-side bearing VIN # 2FTCF10EGCCA20229). ' ' The defendant claims that the warrant was constitutionally infirm because the plural form of the word truck was used thereby authorizing the police to seize without limitation any trucks present in his garage. It is true, as the defendant claims, that a warrant which does not list the items to be seized with particularity violates the fourth amendment and article first, § 7, of the Connecticut constitution. See Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 72 L. Ed. 231 (1927); State v. Pepe, 176 Conn. 75, 78, 405 A.2d 51 (1978). We disagree, however, with the defendant's reading of the warrant. A common sense reading of the warrant indicates that the description information ("a 1982, Ford Pickup truck, color black, model F-100, style Flairside bearing VIN # 2FTCF10EGCCA20229)" was intended to particularize the category "Trucks." Accordingly, the warrant authorized the police to seize only one very specifically described truck. It did not, therefore, violate the particularity requirement of either the fourth amendment to the United States constitution or article first, § 7, of the Connecticut constitution. The defendant argues alternatively that the police exceeded the scope of the warrant by seizing portions of several trucks other than the one listed in the warrant. The state stipulates that items other than a black pickup truck were seized but argues that the seizure of the other articles was justified by the plain view doctrine. We agree with this view. "The plain view doctrine may be invoked to validate the seizure of contraband or stolen goods not mentioned in a warrant where two requirements are satisifed: (1) the initial intrusion which enabled the police to view the items was lawful; and (2) the police had probable cause to believe that the items were contraband or stolen goods." (Footnote omitted.) State v. Hobson, 8 Conn. App. 13, 18, 511 A.2d 348 (1986). It is clear, in light of our analysis of the validity of the warrant, that the first requirement for application of the plain view doctrine was satisfied: the police were lawfully present on the defendant's property and in his garage when they saw the items they seized. The determinative question, then, is whether there was probable cause to believe that the seized items were contraband or stolen goods. "Probable cause to believe that goods are stolen exists when there is enough trustworthy information supporting that proposition that a person of reasonable caution would be justified in believing it." Id., 19. Here, three items seized during the January 8 search were used as the basis for three of the four counts of larceny against the defendant: a 1978 maroon Ford pickup truck with the VIN F14HEBJ4834, a 1979 blue Ford pickup with the VIN X-25JKE J7148, and a 1979 dual wheel Ford pickup truck with the VIN 37SNEA9849. Before seizing the maroon truck, the police determined that several tags containing its identification numbers had been removed, and that its federal mylar sticker, an inalterable identification marker, had been removed. They also knew, based on a telephone inquiry made during the course of the search, that it had been reported stolen within the previous two weeks. They had extensive grounds to believe that the blue truck, too, had been stolen. Its mylar identification sticker had been removed and its VIN tampered with. After checking with the department of motor vehicles from the scene, the police determined that the license plate the truck bore had been registered to a 1974 truck. It was clear to the police, however, that the truck was a much newer vehicle. Similarly, one of the tags on the dual wheel truck which bore its VIN had been tampered with while another had been hidden. The mylar identification sticker had been removed from this vehicle also. In addition to the specific information they acquired concerning the three trucks they seized, the police had general information which indicated that the trucks were stolen. Before they entered the garage, the police had probable cause on the basis of the information provided by the two informants to believe that the defendant was involved in stealing trucks and altering their vehicle identification numbers. When they did execute the warrant, they immediately observed, in open view, parts of numerous vehicles scattered around incongruously in an electrical shop. While the vehicles were relatively new, and apparently undamaged, they were nevertheless partly disassembled. The police also discovered, in open view, tools used to disassemble vehicles, dies which could be used to stamp vehicle identification numbers, and a mutilated stolen license plate. Detective Charles Kelly of the Connecticut state police, who had extensive experience investigating automobile theft, testified at the hearing on the defendant's motion to suppress that the presence of these items was consistent with "chop shop" activities, wherein stolen vehicles are disassembled so their parts may be resold. This information clearly was sufficient to establish probable cause to believe that the vehicles were stolen and, therefore, to allow the police to seize them pursuant to the plain view doctrine. The defendant argues strenuously that there is a third requirement for application of the plain view doctrine: that the police discover the seized items inadvertently. He claims that the discovery in this case may not be characterized as inadvertent since the police entered his garage intending to conduct a rigorous and painstaking search. We reject the defendant's contention. "There has been extensive dispute in the United States Supreme Court; see Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983); Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); over whether a third requirement, that the police discover the items inadvertently, should be applied. While this area has not been definitively resolved, it is clear that in Connecticut 'inadvertence is not required if the items seized fall under the category of contraband, stolen property or objects dangerous in themselves.' State v. Couture, 194 Conn. 530, 547, 482 A.2d 300, cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1984)." State v. Hobson, supra, 18 n.7. Accordingly, the police were entitled to seize the trucks pursuant to the plain view doctrine. The defendant's second claim is that the negative characterization of him during closing argument by the assistant state's attorney was so prejudicial that it deprived him of his right to a fair trial. The state claims that the court should not review this ground of error because the defendant did not object to the remarks at trial. We agree with the state's assertion. "Ordinarily, where a criminal defendant does not object and take exception to allegedly prejudicial remarks of the state's attorney, either at the time they were made or at the close of argument, he waives his right to press the claimed error on appeal. State v. Lubesky, 195 Conn. 475, 484, 488 A.2d 1239 (1985); State v. Malley, 167 Conn. 379, 387, 355 A.2d 292 (1974). Where counsel fails to object or to request a curative charge 'we have presumed that defense counsel did not view the remarks as so prejudicial that his client's right to a fair trial was seriously jeopardized. State v. Lubesky, supra; State v. Falcone, 191 Conn. 12, 23 n.13, 463 A.2d 558 (1983).' State v. Tyler-Barcomb, 197 Conn. 666, 673, 500 A.2d 1324 (1985)." State v. Chace, 199 Conn. 102, 108, 505 A.2d 712 (1986). This assumption is reinforced by the defendant's failure to include the claim in his preliminary statement of the issues as is required by Practice Book § 3012. This court has previously shown a disinclination to review claims that do not comply with the mandates of that section. State v. DiStefano, 7 Conn. App. 726, 727 n.1, 510 A.2d 995 (1986); Wadsworth v. Zahariades, 1 Conn. App. 373, 375 n.4, 472 A.2d 29 (1984). After a careful review of the record, we see no reason to ignore the general rule. Under these circumstances, we conclude that the defendant waived his right to raise this claim. Similarly, the defendant failed to include his third issue, that the trial court erred in allowing amendments to the information during trial, in his preliminary statement of the issues. We, therefore, decline to review this claim as well. The defendant's final claim is that the trial court erred in denying his motion for judgment of acquittal based on the alleged insufficiency of the evidence. To obtain a conviction under General Statutes § 53a-119 (8) and 53a-123 (a) (1), the state was required to prove beyond a reasonable doubt that the defendant, with the knowledge or belief that it had probably been stolen, received, retained or disposed of a stolen motor vehicle having a value of two thousand dollars or less. According to the defendant, the state failed to prove two of these elements: that what he received, retained or disposed of was a "motor vehicle" as defined by General Statutes § 14-1 (30), and that the value of the vehicle that formed the basis for the charge was less than $2000. " 'Appellate review of such a claim requires us to undertake a two step analysis. "We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury's verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt." State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985).' State v. Brown, 198 Conn. 348, 352, 503 A.2d 566 (1986)." State v. Hobson, supra, 23-24. Having carefully reviewed the record, we find that the jury could reasonably have concluded that the state had met its burden of proving the defendant guilty of each charge beyond a reasonable doubt. The defendant first claims that the state did not introduce sufficient evidence to prove that what he received, retained or disposed of was a motor vehicle, that is, "any vehicle propelled or drawn by any nonmuscular power." General Statutes § 14-1 (30). The essence of this claim is that the defendant was convicted on one count of the information based on his possession of the bed of a red pickup. Since the bed of a truck alone cannot be propelled, the defendant argues that it cannot be considered a motor vehicle, and his conviction on this count, therefore, cannot stand. Even if we assume, arguendo, that the definition contained in General Statutes § 14-1 (30) controls, the defendant's argument must fail. In reaching a verdict, the jury is entitled to draw all reasonable and logical conclusions that are supported by the evidence. State v. Little, 194 Conn. 665, 673, 485 A.2d 913 (1984). Here, the police found the bed of the truck in the midst of what appeared to be a chop shop, an operation where vehicles are disassembled and sold for parts. Under these circumstances, the jury could quite reasonably and logically conclude, solely on the basis of the presence of the bed of the truck, that the defendant, at one point, received, retained or disposed of the motor vehicle of which it was a part. The defendant's final claim is that the state failed to prove the element of value necessary for the crime beyond a reasonable doubt. General Statutes § 53a-123 (a) provides in part that "[a] person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and: (1) The property consists of a motor vehicle, the value of which is two thousand dollars or less. " (Emphasis added.) The defendant asserts that the only testimony as to the value of the vehicles he was charged with receiving, retaining or disposing of established that each vehicle was worth more than $2000. He argues, therefore, that his conviction for larceny in the second degree can not stand. We disagree with the defendant's creative reading of General Statutes § 53a-123. When construing a statute, a court must try to discern what the legislature intended in enacting it. Landry v. Personnel Appeal Board, 138 Conn. 445, 447, 86 A.2d 70 (1952). If the language of the statute alone does not clearly indicate intent, intent must be determined "by considering [the statute] in the light of all of its provisions, the object which it seeks to accomplish, the pre-existing legislation upon the same subject matter, and all other relevant circumstances." Id. When General Statutes § 53a-123 is analyzed in the light of the other provisions of the larceny statutes, its meaning becomes clear. Under General Statutes § 53a-122 (a) (3), a person who commits larceny of a motor vehicle is guilty of larceny in the first degree if the value of the vehicle exceeds two thousand dollars. Reading that statute together with General Statutes § 53a-123, we conclude that the latter does not establish a ceiling for prosecution for larceny in the second degree but, rather, provides a floor for prosecutions for larceny in the first degree. When the value of a stolen motor vehicle exceeds $2000 dollars, the individual who received, retained or disposed of it may be prosecuted for larceny in the first degree. We see nothing in the language, structure or history of the larceny statutes which indicates that he may not instead be prosecuted for larceny in the second degree, especially where, as here, the value determination is not a yardstick measure. Such an interpretation of General Statutes § 53a-123 is supported by logic and common sense. By proving that the value of each vehicle involved exceeded $2000, the state necessarily and unequivocally proved that they were worth $2000 and all lesser amounts. " 'When two constructions are possible, courts will adopt the one which makes the [statute] effective and workable, and not one which leads to difficult and possibly bizarre results.' Muller v. Town Plan & Zoning Commission, 145 Conn. 325, 331, 142 A.2d 524 (1958)."Maciejewski v. West Hartford, 194 Conn. 139, 152, 480 A.2d 519 (1984). The trial court did not err in denying the defendant's motion for judgment of acquittal. There is no error. In this opinion the other judges concurred. Two separate informations, one charging a single count of larceny in the second degree, the other charging three counts of larceny in the second degree, were filed against the defendant. He was tried jointly under both informations and was convicted on all counts. Thereafter, two judgments of conviction, one for one count of larceny in the second degree and another for three counts of larceny in the second degree were rendered against the defendant. While the defendant appealed from each judgment separately, this court ordered that the appeals be combined. In State v. Kimbro, 197 Conn. 219, 235-36, 496 A.2d 498 (1985), our Supreme Court held that under certain circumstances article first, § 7 of the Connecticut constitution requires a more searching examination of whether probable cause exists than does the fourth amendment to the United States constitution. The court in that case, therefore, held that the more rigorous two-prong "veracity" and "basis of knowledge" test enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and refined in Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), and not the "totality of the circumstances" test enunciated in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983), must be applied to determine whether probable cause to search existed if probable cause was based in part on information provided by an informant. While Kimbro involved a warrantless search, this court has previously determined that the Kimbro holding governs even where the challenged search was authorized by a warrant. State v. Garcia, 7 Conn. App. 354, 358, 508 A.2d 824 (1986). We note that the affiants did not, as was done in State v. Romano, 165 Conn. 239, 244, 332 A.2d 64 (1973), relate how the previously provided information was proven reliable. They did not, for example, aver that convictions resulted or that the information was verified by the police. Rather, the affiants merely made an unsupported assertion of reliability. Given the other indicia that the information was reliable, we need not determine whether such a conclusory statement alone would be sufficient to establish informant credibility. We need not determine whether in the light of our Supreme Court's decision in State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985), corroboration of innocent or noncriminal activity alone is sufficient to establish probable cause since in this case, probable cause was not based solely on corroboration of these allegations. Having determined that the January 8 search was lawful, we have also disposed of the defendant's other claim: that the trial court erred by not suppressing the items seized during the later search of his garage. By this holding, we are in no way indicating approval of the comments made by the assistant state's attorney. It is elementary that "[t]he prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence. ." State v. Gold, 180 Conn. 619, 659, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980), quoting ABA Standards Relating to the Prosecution Function and the Defense Function § 5.8 (d) (1971). There were two informations, each of which was amended. See footnote 1, supra.

Longo, J. A jury found the defendant, Miguel A. Miranda, guilty of the crime of manslaughter in the first degree in violation of § 53a-55 (a) (1) of the General Statutes. The defendant admitted that he shot the victim, Daniel Germany, and testified that he acted in self-defense when Germany attacked him with a knife. His only claim on appeal is that the trial court erred in excluding from evidence Germany's record of convictions of crimes of violence. We agree. _ Germany had a lengthy criminal record. The defendant's offer of proof was limited to two convictions of breach of peace by assault in 1965, a conviction of carrying a dangerous weapon in 1969, and a conviction of assault in the second degree in 1973. Those convictions, of which the defendant was unaware at the time of the shooting in 1975, were offered as evidence of Germany's violent character, as tending to show that Germany was the aggressor in the fatal incident. Thus the evidentiary issue resolves itself into two distinct questions: (1) In a homicide trial where the accused claims self-defense, may the accused introduce evidence of the victim's violent character to establish that the victim was the aggressor, regardless of the accused's lack of prior knowledge of such character or the evidence? (2) If such evidence is generally admissible, is the victim's record of convictions of crimes of violence acceptable proof of character? I In a trial for homicide the character of the deceased ordinarily is irrelevant to the accused's guilt or innocence. It is well settled, however, that an accused may introduce evidence of the violent, dangerous or turbulent character of the victim to show that the accused had reason to fear serious harm, after laying a proper foundation by adducing evidence that he acted in self-defense and that he was aware of the victim's violent character. State v. Padula, 106 Conn. 454, 456, 138 A. 456; 1 Wharton, Criminal Evidence (13th Ed.) §236; annot., 1 A.L.R.3d 571, 596 § 7. The reason for the rule was explained in State v. Padula, supra: "If the reputation of the deceased be that of a violent, dangerous, or turbulent character, such reputation, if known to the defendant, may be a circumstance contributing to a reasonable belief by the accused that his life is in peril and his consequent state of mind as to the necessity of defending himself and the means justifiably to be taken in so doing." Logically, evidence of a homicide victim's violent character might be offered by the accused for yet another purpose, to show that the victim was the aggressor in their encounter, irrespective of the accused's knowledge of the victim's character. This view was considered and rejected in State v. Padula, supra, 459. See also State v. Johnson, 139 Conn. 89, 93, 90 A.2d 905. We have not had occasion to reconsider the matter since. The case for admissibility of character evidence on the vital issue of who was the aggressor has been cogently stated by Professor Wigmore. When evidence of the deceased's violent character is offered to show the defendant's state of mind, "it is obvious that the deceased's character, as affecting the defendant's apprehensions, must have become known to him; i.e. proof of the character must indispensably be accompanied by proof of its communication to the defendant; else it is irrelevant." 1 Wigmore, Evidence (3d Ed.) § 63, p. 470. But when evidence of the deceased's character is offered to show that he was the aggressor, "this additional element of communication is unnecessary; for the question is what the deceased probably did, not what the defendant probably thought the deceased was going to do. The inquiry is one of objective occurrence, not of subjective belief." 1 Wigmore, loc. cit. We are no longer persuaded that these forceful arguments are outweighed by the objections raised in State v. Padula, supra, 459, that admitting such evidence would unfairly prejudice the prosecution's case and would tempt the jury "to measure the guilt of the accused by the deserts of the victim." When an accused chooses to place the deceased's violent character in issue, the state may enjoy the same right of rebuttal as when the accused places his own nonviolent character in issue. See State v. Martin, 170 Conn. 161, 167, 365 A.2d 104; 1 Wharton, Criminal Evidence (13th Ed.) § 236, pp. 514-17. .There is always the risk that the jury may be unduly diverted and confused by collateral matters such as character; the sound discretion of the court is relied upon to focus the jury's attention on the material issues in the trial. In cases which have observed the distinction between using evidence of the deceased's violent character to show the accused's state of mind and using it to show that the deceased was the aggressor, it has generally been held that when competent evidence of character is offered for the latter purpose it is admissible regardless of the extent of the accused's knowledge of such character or of the particular evidence in question. We adopt the majority rule. See United States v. Burks, 470 F.2d 432, 434-35 (D.C. Cir.); State v. Griffin, 99 Ariz. 43, 47, 406 P.2d 397; People v. Cellura, 288 Mich. 54, 64, 284 N.W. 643; State v. Keaton, 258 Minn. 359, 367, 104 N.W.2d 650; Commonwealth v. Amos, 445 Pa. 297, 302-303, 284 A.2d 748; State v. Infantolino, 116 R.I. 303, 313-14, 355 A.2d 722; 1 Wharton, op. cit. § 236, p. 513; annot., 1 A.L.R.3d 571, 601 § 8. n The next stage of our inquiry is whether it is permissible to prove a homicide victim's violent character and hence the allegation that he was the aggressor by evidence of his prior convictions of crimes of violence. In theory, a trait of character may be proved in three ways: (1) by testimony concerning the individual's reputation in the community as to the trait; (2) by testimony of those who have had an opportunity to form, and have formed, an opinion as to whether the individual possessed the trait; (3) by evidence of specific acts of the individual under similar circumstances, from which the existence of the character trait may be inferred. The first method is universally acceptable in situa tions where character evidence is permitted. State v. Blake, 157 Conn. 99, 104, 249 A.2d 232; McCormick, Evidence (2d Ed.) § 186. Although the second method is not allowed in a number of states, Connecticut adopted it in Richmond v. Norwich, 96 Conn. 582, 594, 115 A. 11, on the rationale that "[pjersonal observation and personal knowledge are a more trustworthy reliance than general reputation." Both methods are appropriate to prove the character for violence of a homicide victim. See State v. Padula, 106 Conn. 454, 456-57, 138 A. 456; State v. Jacoby, 260 N.W.2d 828, 837 (Iowa). The third method of proving character, evidence of specific acts, has consistently been disapproved in Connecticut and other jurisdictions except in cases where character is directly in issue. State v. Townsend, 167 Conn. 539, 561, 356 A.2d 125; 1 Wigmore, Evidence (3d Ed.) § 191-213. Such evidence of specific instances of conduct is excluded not because it is unconvincing, but because it has the potential to surprise, to arouse prejudice, to multiply the issues and confuse the jury, and to prolong the trial. Richmond v. Norwich, supra, 597; Verdi v. Donahue, 91 Conn. 448, 454, 99 A. 1041. These considerations have led many courts to limit proof of a homicide victim's character for violence to reputation testimony and opinion testimony, excluding evidence of prior convictions and other specific acts of violence unknown to the defendant. Sanders v. State, 245 Ark. 321, 324, 432 S.W.2d 467; People v. Flores, 189 Colo. 209, 211, 539 P.2d 1236; State v. Jacoby, supra, 838; Henderson v. State, 234 Ga. 827, 829-30, 218 S.E.2d 612; McDonald v. State, 218 So. 2d 21, 22-23 (Miss.); State v. Infantolino, supra. On the other hand, in similar circumstances a growing number of jurisdictions have recognized an exception to the rule that prior convictions and other specific acts of violence may not he used to prove character. United States v. Burks, 470 F.2d 432, 434, 438 (D.C. Cir.); United States v. Akers, 374 A.2d 874, 877 (D.C. App.); People v. Rowland, 262 Cal. App. 2d 790, 797, 69 Cal. Rptr. 269; State v. Taylor, Minn. , 258 N.W.2d 615, 620; State v. Alderette, 86 N.M. 600, 605, 526 P.2d 194; Commonwealth v. Amos, 445 Pa. 297, 302, 284 A.2d 748; Dempsey v. State, 159 Tex. Crim. 602, 605, 266 S.W.2d 875; Stover v. Commonwealth, 211 Va. 789, 794, 180 S.E.2d 504. We are presented in this appeal only with the question of the admissibility of convictions of crimes of violence. We agree with the reasoning of the latter group of decisions that the nature of such evidence and the victim's absence from the trial warrant a narrow exception to the rule that conduct may not he used to prove character. That a homicide victim has a record of violent crime should not come as a surprise to the prosecution. Nor is introduction of the victim's criminal record likely to confuse the jury and waste time, since the fact of the convictions is beyond dispute and inquiry must necessarily he limited to the time the events occurred and the nature of the conduct for which the victim was convicted. Commonwealth v. Amos, supra, 302-303; see also State v. Mason, 208 Kan. 39, 41, 490 P.2d 418; State v. Conyers, 58 N.J. 123, 133, 275 A.2d 721; People v. Cruz, 65 P.R.R. 160, 168. Most important, such evidence can he highly relevant in helping the jury to determine whether the victim had a violent disposition and whether the defendant's story of self-defense is truthful. See Evans v. United States, 277 F.2d 354, 356 (D.C. Cir.). We hold that in a homicide prosecution where the accused has claimed self-defense, the accused may show that the deceased was the aggressor by proving the deceased's alleged character for violence. The deceased's character may be proved by reputation testimony, by opinion testimony, or by evidence of the deceased's convictions of crimes of violence, irrespective of whether the accused knew of the deceased's violent character or of the particular evidence adduced at the time of the death-dealing encounter. We emphasize that the accused is not permitted to introduce the deceased's entire criminal record into evidence in an effort to disparage his general character; only specific convictions for violent acts are admissible. People v. Miller, 39 N.Y.2d 543, 553, 349 N.E.2d 841. Nor is the accused authorized to introduce any and all convictions of crimes involving violence, no matter how petty, how remote in time, or how dissimilar in their nature to the facts of the alleged aggression. In each case the probative value of the evidence of certain convictions rests in the sound discretion of the trial court. Commonwealth v. Amos, supra. In this ease, the fatal shooting took place in 1975 and the defendant's offer of proof consisted of two convictions of breach of peace by assault in 1965, a conviction of carrying a dangerous weapon in 1969, and a conviction of assault in the second degree in. 1973. Those convictions can perhaps be questioned as being too remote in time or lacking elements of violence, depending on the underlying facts and circumstances. The record indicates, however, that the trial court excluded the convictions not for lack of probative value, but for lack of a showing that the defendant knew of them, which was a correct application of the law stated in State v. Padula, 106 Conn. 454, 459, 138 A. 456. Having concluded that the law should be changed, we cannot say under the circumstances that the court's ruling could not reasonably have affected the jury's rejection of the self-defense claim and was therefore harmless. State v. Tropiano, 158 Conn. 412, 427, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d 288. There is error, the judgment is set aside and a new trial is ordered. In this opinion Bogdanski, Speziale and Peters, Js., concurred. There is a marked trend towards admitting evidence of prior convictions and other instances of violent conduct known to the defendant as probative of the defendant's state of mind. See People v. Miller, 39 N.Y.2d 543, 349 N.E.2d 841; Maggitt v. Wyrick, 533 F.2d 383, 386n (8th Cir.).

Dannehy, J. A jury found the defendant guilty of sexual assault in the first degree; General Statutes § 53a-70 (a); and of criminal attempt to commit murder. General Statutes § 53a-54 (a) and 53a-49 (a). He claims on appeal that the trial court erred: (1) in instructing the jury on the issue of insanity when no instruction was requested and no evidence of insanity was presented; (2) in instructing the jury on circumstantial evidence; (3) in instructing the jury on sexual assault in the first degree when the uncontroverted evidence revealed that the victim was unconscious when penetration occurred; (4) in instructing the jury that under the evidence presented it could find the defendant possessed the requisite intent to commit both sexual assault and murder; (5) in denying his motion for severance and his motions for judgment of acquittal and for a new trial. We agree with the defendant's first and second claims and, accordingly, vacate the judgment and remand for a new trial. Our disposition of this case makes it necessary to consider only those claims and other matters which could possibly arise on a subsequent retrial of the case. The defendant did not take the witness stand in his own behalf or offer any direct evidence at trial. The victim testified that on the night of August 14, 1980, she had been working at a stag party. When the party ended, she accompanied her employer and his wife to a local bar. There she met the defendant. They talked and consumed several beers. After about an hour, the victim and the defendant left on the defendant's motor cycle for a second bar where they tarried until closing time. Shortly after they exited the second bar, it began to rain. They then proceeded to the defendant's house in order to get his car. The victim testified that while riding in the defendant's car she fell asleep. She awoke to find the defendant with his hands around her throat, choking her. The victim testified that during the time the defendant was choking her, "[h]e was asking me where my friends were. Where are they now? What are they going to do and how are they going to help me." As to the actions of the defendant, she stated, "[h]e was squeezing [my neck], squeezing it to the point where I couldn't talk or breathe anymore. Then I blacked out." When the victim regained consciousness, she found herself on a pile of rocks on the side of the road, with her shoes, underpants and purse scattered nearby. Her rectum was very sore. On cross-examination, the victim reasserted that she had no pain in her rectum prior to being rendered unconscious and that she was positive that the injury was not caused by any person other than the defendant. Several witnesses corroborated the victim's testimony that she had been with the defendant on the evening of August 14, 1980, and that they had left the second bar together. An examination of the victim's dress and underpants, which had been washed prior to the incident, revealed the presence of seminal stains. Further testimony established that the victim had sustained permanent injury to her third vertebra, explained in medical testimony as a broken neck. We address first the defendant's claim that the trial court committed reversible error by instructing the jury on the issue of insanity. At trial, the defendant did not raise the defense of insanity, and the record demonstrates that the state presented no evidence that placed the defendant's sanity in issue for resolution by the jury. Indeed, the state, along with the defendant, excepted to this portion of the trial court's charge. The trial court should submit no issue to the jury which is foreign to the facts in evidence, or upon which no evidence was offered, and it should not submit to the jury considerations which find no support in the evidence. State v. Cofone, 164 Conn. 162, 168, 319 A.2d 381 (1972); see State v. Rose, 169 Conn. 683, 687, 363 A.2d 1077 (1975). The test usually applied in determining whether there is error in a charge is that the charge must be correct in law, adapted to the issues and sufficient for the guidance of the jury. State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982); State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980). If the charge meets this test it will ordinarily be sustained though not in all respects exhaustive, perfect, or technically accurate. Although this case was tried before the 1983 amendments to General Statutes § 53a-13 made the defense of insanity an affirmative defense, our case law was nonetheless well settled that the issue of insanity is not properly raised until "substantial evidence" tending to prove insanity has come into the case. State v. Rossier, 175 Conn. 204, 209, 397 A.2d 110 (1978); State v. Davis, 158 Conn. 341, 355-56, 260 A.2d 587 (1969); State v. Kenyon, 134 Conn. 43, 49, 54 A.2d 585 (1947). In this case the defendant would not have been entitled to an instruction on the issue of insanity because the question of his sanity never came into the case. For the same reason, the trial court erred by submitting that issue, sua sponte, to the jury. Cf. State v. Young, 191 Conn. 636, 648-49, 469 A.2d 1189 (1983). We do not consider the state's claim that this error was harmless because it is unnecessary in view of the result reached on the defendant's second claim of error. The defendant next claims that the trial court erred in its instructions to the jury regarding circumstantial evidence. The defendant duly excepted to the following italicized portions of the trial court's charge: "Now, circumstantial evidence. Proof beyond a reasonable doubt does not mean that you must have direct evidence supporting a fact. You may apply the rule of circumstantial evidence. This rule involves the offering of evidence of facts from which you are asked to infer the existence of another fact or set of facts. Such an inference may be made provided two elements in the application of the law are satisfied. One, that the fact from which you are asked to draw the inference has itself been proved beyond reasonable doubt. Two, that the inference that has to be drawn is not only logical and reasonable but is strong enough so that you can find that it is more probable that the fact to be inferred is true. " (Emphasis added.) The defendant claims that the requisite standard of proof beyond a reasonable doubt was impermissibly diluted by the trial court's instruction that an inference may be drawn provided "that it is more probable that the fact to be inferred is true." We agree. Circumstantial evidence is evidence offered to prove a certain fact from which the jury is asked to infer, and so to find, the existence of another fact in issue. The jury must initially find that the state has proved the basic fact, from which the jury is asked to draw the inference, beyond a reasonable doubt. If and only if the jury finds the basic fact to have been proved beyond a reasonable doubt may it go on to consider the inference. The inference drawn must be reasonable and logical, and not the result of speculation or conjecture. State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 749 (1980). Further, the jury must be satisfied that the fact to be inferred has been proved beyond a reasonable doubt. The state argues that " '[i]t is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circum stantial evidence.' " State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981); see State v. Martin, 195 Conn. 166, 173, 487 A.2d 177 (1985). While this is unquestionably true, it is not meant to imply that the jury may find the existence of inferred facts by less than proof beyond a reasonable doubt. The law makes no distinction as to the probative effect of direct and circumstantial evidence. State v. Englehart, 158 Conn. 117, 119, 256 A.2d 231 (1969); State v. Reid, 154 Conn. 37, 40, 221 A.2d 258 (1966). By the same token, the standard of proof as to inferred facts is no less than that applied to basic facts. Ordinarily, for a determination of whether the jury has been misled, a charge is to be read as a whole, and detached clauses are not to be considered by themselves but in connection with the whole. State v. Marra, 195 Conn. 421, 440-41, 489 A.2d 350 (1985). We cannot bring the case within the purview of this rule. Much of the evidence produced by the state was circumstantial evidence, especially that bearing on the issue of criminal intent as it related to the crimes charged in the substitute information. The instruction challenged is contained in that portion of the charge dealing with the general principles of law applicable in a criminal case, when the trial judge was engaged in defining to the jury the important subject of burden of proof. State v. DelVecchio, 191 Conn. 412, 420, 464 A.2d 813 (1983). The present case particularly called for a correct instruction on the meaning and utilization of circumstantial evidence in a criminal case. There exists such a contradiction between the erroneous instruction and the admixture of correct doctrine that as a whole it cannot be said that the incorrect statement did not influence the jury. A final argument raised by the state also merits consideration. We have consistently rejected the claim "that when any circumstance offered in evidence is susceptible to two inferences, one of which is in favor of guilt and the other of innocence, the circumstance must be disregarded and cannot be taken into consideration by the trier in reaching its conclusion." State v. Foord, 142 Conn. 285, 294, 113 A.2d 591 (1955); State v. Morrill, 193 Conn. 602, 610-11, 478 A.2d 994 (1984); see also State v. Dumlao, 3 Conn. App. 607, 616-20, 491 A.2d 404 (1985). From this the state concludes that the fact ultimately inferred by the jury must necessarily be established by a lesser standard than proof beyond a reasonable doubt. We disagree with the state's conclusion. It offends neither logic nor reason that a particular fact may give rise to contradictory inferences. The inference ultimately drawn by the jury need not be the only rational inference possible. Our law confides to the jury the difficult task of deciding among often conflicting inferences which logically and reasonably may flow from the same basic fact. In its consideration of the evidence the jury must rely on its common sense, experience and knowledge of human nature in drawing inferences and reaching conclusions of fact. State v. Carter, 196 Conn. 36, 45, 490 A.2d 1000 (1985). The facts essential to an element of the crime, however, whether basic or inferred, must be found proved beyond a reasonable doubt. We find that the trial court erred by instructing the jury that an inference may be drawn if "it is more probable that the fact to be inferred is true." We next consider various claims raised by the defendant in which there is no error but which may recur on retrial. The defendant claims that the trial court erred in its instructions to the jury on the crime of sexual assault in the first degree. The gist of this claim is that under General Statutes § 53a-70 an accused cannot be found guilty of sexual assault in the first degree when the victim is unconscious during the assault. The defendant renewed this claim in support of his motions for judgment of acquittal and for a new trial. General Statutes § 53a-70 (a) provides that a "person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person . or by the threat of use of force against such other person . . . which reasonably causes such person to fear physical injury to such person . . . ." Thus, compulsion is an essential element of the crime of sexual assault in the first degree, either by the actual use of force or the threat of use of force which reasonably causes fear of physical injury. The defendant contends that because compulsion connotes the domination of another against his active will, a victim who is unconscious and, therefore, without will to resist cannot be compelled to engage in an act of sexual intercourse. The defendant argues that the legislative history of our sexual assault statutes supports his contention that General Statutes § 53a-70 was not intended to impose criminal liability where the victim is not conscious of the sexual assault. Prior to 1975, sexual intercourse "by forcible compulsion" and sexual intercourse with one "who is incapable of consent by reason of being physically help less" were both considered rape in the first degree as proscribed by General Statutes (Rev. to 1975) § 53a-72. In that year, § 53a-72 was repealed and its provisions divided between our present § 53a-70, sexual assault in the first degree, and § 53a-71, sexual assault in the second degree. Public Acts 1975, No. 75-619. While our first degree sexual assault statute retained the element of sexual intercourse by forcible compulsion, sexual intercourse with a person who is "mentally incapacitated or physically helpless" became one of the statutory variants of sexual assault in the second degree. General Statutes § 53a-71 (a) (2) and (3). Our statutes define "physically helpless" to mean "a person [who] is unconscious or for any other reason is physically unable to communicate unwillingness to an act." General Statutes § 53a-65 (6). We agree in part with the defendant's argument, but not with its application to this case. We agree that General Statutes § 53a-70 does not include sexual intercourse with a victim whom the assailant finds unconscious. Here, however, the victim testified that the defendant strangled her into a state of unconsciousness. It would be bizarre indeed to find that the legislature, in enacting the 1975 amendments to our sex crimes statutes, intended to impose a lesser degree of responsibility for sexual assault upon a person, who, by his own hand, renders the victim physically helpless and thus "unable to communicate unwillingness to an act." General Statutes § 53a-65 (6). This court traditionally eschews construction of statutory language which leads to absurd consequences and bizarre results. State v. Parmalee, 197 Conn. 158, 165, 496 A.2d 186 (1985); Maciejewski v. West Hartford, 194 Conn. 139, 152, 480 A.2d 519 (1984); Milano v. Warden, 166 Conn. 178, 187, 348 A.2d 590 (1974); Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 103, 291 A.2d 721 (1971). We find that the trial court properly instructed the jury on the crime of sexual assault in the first degree. We next consider the defendant's claim that the trial court erred by refusing his request to instruct the jury that under the evidence presented he could not be found guilty of both sexual assault in the first degree and attempted murder. The underlying act upon which the attempted murder charge was based was the defendant's strangulation of the victim. This same act of strangulation, resulting in the victim's loss of consciousness, was also the only evidence of the use of force necessary to sustain a conviction for sexual assault in the first degree. The defendant contends that in performing this act he could not have possessed both the intent to commit murder and the intent to commit sexual assault in the first degree. The mental state associated with the crime of attempt to commit murder is the "intent to cause the death of another person." General Statutes § 53a-49 (a) and 53a-54a (a). Sexual assault in the first degree is a "general intent crime with no element of specific intent." State v. Johnson, 185 Conn. 163, 176, 440 A.2d 858 (1981), aff'd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983); State v. Truppi, 182 Conn. 449, 454-55, 455 n.4, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981). Normally, the force used in the course of committing sexual assault in the first degree is that necessary to compel the victim to engage in sexual intercourse. Where, however, as here, the defendant himself renders the victim physically helpless and unable to communicate her unwillingness to consent, the use of force need not be undertaken solely for the purpose of compelling the victim to engage in sexual intercourse. A contrary holding would result in reduced culpability for a defendant who causes his victim to lose consciousness, by whatever means, prior to committing an act of sexual assault. Even if we were to accept the defendant's argument that in strangling his victim he could not simultaneously have intended to commit both murder and sexual assault in the first degree, he would not prevail. On the facts of this case, it was not necessary that the defendant intended to sexually assault his victim as he strangled her. It is enough that after having caused her to lose consciousness by breaking her neck, he did commit the sexual assault. We conclude that the trial court properly refused to instruct the jury that the defendant could not be found guilty of both attempted murder and sexual assault in the first degree. We address next the defendant's claim that the trial court erred in denying his motion for severance. We find no error. The question of severance is within the sound discretion of the trial court and that discretion must not be disturbed unless it has been manifestly abused. State v. Jonas, 169 Conn. 566, 570, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S. Ct. 1132, 47 L. Ed. 2d 331 (1976). "The discretion of a court to order separate trials should be exercised only when a joint trial will be substantially prejudicial to the rights of the defendant, and this means something more than that a joint trial will be less advantageous to the defendant." State v. Silver, 139 Conn. 234, 240, 93 A.2d 154 (1952). "[A]n accused bears a heavy burden to show that the denial of severance resulted in substantial injustice because of a manifest abuse of discretion in denying severance." State v. King, 187 Conn. 292, 302, 445 A.2d 901 (1982); State v. Bell, 188 Conn. 406, 410-11, 450 A.2d 356 (1982). The defendant claims that substantial prejudice resulted from the trial court's admission of hearsay testimony under the constancy of accusation exception to the hearsay rule. State v. Ouellette, 190 Conn. 84, 92, 459 A.2d 1005 (1983); State v. Brice, 186 Conn. 449, 453-54, 442 A.2d 906 (1982). At trial, Detective Howard Jones of the Waterbury police department was allowed to testify, over the defendant's objection, to the details of the alleged incident related to him by the victim. While this evidence of the victim's prior consistent statements was not admissible on the charge of attempted murder; State v. Dolphin, 178 Conn. 564, 568, 424 A.2d 266 (1979); the statements were admissible, under the constancy of accusation exception to the hearsay rule, on the charge of sexual assault. We do not believe that the admission of Jones' testimony under these circumstances amounts to the substantial injustice necessary to find a manifest abuse of discretion. Jones' testimony was merely corroborative of facts to which the victim herself testified at trial. The trial court twice instructed the jury to consider this testimony only with regard to the charge of sexual assault in the first degree, once before Jones testified and, again, in its charge to the jury. The limited purpose for which this evidence was admitted would not justify a severance of the sexual assault and attempted murder charges. The defendant also contends that joinder of these charges "impermissibly interfered" with his decision whether to testify in his own behalf. Before trial, the defendant advised the trial court of the "possibility of his desire to testify as to the charge of sexual assault and to present . . . evidence regarding his good character, specifically sexual morality and decency." The defendant conceded that in such event the state would attempt to introduce, on the issue of credibility, his prior convictions for robbery, burglary and larceny. We have previously followed the reasoning in Baker v. United States, 401 F.2d 958, 976-77 (D.C. Cir. 1968), cert. denied, 400 U.S. 965, 91 S. Ct. 367, 27 L. Ed. 2d 384 (1970), that " 'no need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information—regarding the nature of the testimony he wishes to give on one count and his reason for not wishing to testify on the other— to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of "economy and expedition in judicial administration" against the defendant's interest in having a free choice with respect to testifying.' " State v. King, supra, 307. We are satisfied that the defendant has made no such showing here, and we find no error by the trial court in denying the motion for severance. Finally, the defendant urges error in the refusal by the trial court to grant his motions for judgment of acquittal and for a new trial. As both of these motions were based on a challenge to the sufficiency of the evidence, we consider them together for purposes of review. We find no error. "The standard that applies when a jury verdict is challenged on the ground of insufficient evidence is well established. 'When a verdict is challenged because of insufficient evidence, the issue is whether the jury could have reasonably concluded, 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. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980); State v. Heinz, 193 Conn. 612, 625, 480 A.2d 452 (1984); State v. Ruiz, 171 Conn. 264, 276-77, 368 A.2d 222 (1976). The evidence must be given a construction most favorable to sustaining the jury's verdict." State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985). Our holding with respect to claims already addressed in this opinion disposes of the defendant's renewed claim that the evidence of intent was insufficient to sustain a finding of guilt for both the crimes of attempted murder and sexual assault in the first degree. The jury could reasonably have found that the defendant, when he choked the victim until she lost consciousness, intended to cause her death. Further, the jury could reasonably have concluded that the defendant in fact caused the victim to lose consciousness, and thereafter engaged in sexual intercourse with her as defined in General Statutes § 53a-65 (2). See State v. Kish, 186 Conn. 757, 763, 443 A.2d 1274 (1982). The defendant next argues that the evidence of penetration was insufficient to sustain his conviction for sexual assault in the first degree. We must disagree. The victim testified that the defendant strangled her until she became unconscious. When she awoke her underpants had been removed and her rectum was sore. Seminal stains were found on her dress and underpants, both of which had been washed prior to her wearing them on the evening in question. The chief medical examiner testified that seminal stains could not survive the washing of clothes. Dr. James Thomas, a gynecologist who examined the victim the day after the incident occurred, found a "fissure" just below her vaginal opening. He testified that the fissure was "consistent with rectal penetration either with a penis or some type of object." He further expressed the opinion that "[s]ome type of large diameter object that was pushed into that area (the rectum) without relaxation could cause a split in the tissue like that." We find that the cumulative effect of the evidence as it relates to the issue of penetration is sufficient to sustain a finding of guilt beyond a reasonable doubt of sexual assault in the first degree. We find that the trial court did not err in denying the defendant's motions for judgment of acquittal and for a new trial on the basis of the insufficiency of the evidence. There is error in part, the judgment is set aside and the case is remanded for a new trial. In this opinion Peters, C. J., Santaniello and Kline, Js., concurred. Our discussion is concerned with only those facts essential to prove an element of the crime. "There must be proof beyond a reasonable doubt of all the elements of the crime and the defendant's participation or responsibility, but not of each evidentiary fact." (Emphasis added.) LaFave & Scott, Criminal Law (1972) § 4, p. 16. It is only where a particular subordinate fact is essential to the proof of an element of the crime that it must be proved beyond a reasonable doubt. The trial court twice gave this instruction to the jury, once during its general instructions on burden of proof, and again during its specific instructions on the elements of sexual assault in the first degree. Although the defendant did not object at trial nor raise the claim on appeal, we note that Jones was allowed to testify before the victim, in violation of our rules concerning the constancy of accusation exception. We suggest that the proper procedure be followed on retrial. See State v. Brice, 186 Conn. 449, 453-54, 442 A.2d 906 (1982).

The named plaintiff's petitions for certification for appeal from the judicial district of Waterbury are denied by the court.

The plaintiff's petition for certification for appeal from the judicial district of New London at New London is granted by the court.

Bogdanski, J. The plaintiffs, Rae S. Hoadley and Robert A. Hoadley, brought an action to recover damages and medical expenses for the personal injuries allegedly caused to the plaintiff "wife by the negligence of the defendant in failing to keep its premises in a reasonably safe condition. From the judgment rendered upon a verdict for the plaintiffs, the defendant has appealed to this court. There was evidence before the jury from which the following facts could reasonably have been found: On the evening of November 14, 1972, the plaintiff Rae Hoadley drove a busload of high school students to the campus of the defendant. The students were invited to the university to view a dress rehearsal for a play in order that the actors might perform before a live audience. After parking the bus at a designated parking area, the plaintiff and the students walked to Auerbach Hall where the play was to be performed. At 10 :S0 p.m. the plaintiff left the hall to get the bus and drive it to the entrance of Auerbach Hall so that the students could embark there. It was dark and there was no sidewalk on the side of the paved roadway on which the plaintiff was walking. As she approached the parking lot, her right foot slipped off the edge of a concrete storm catch basin located near the edge of the road, and she fell. As she lay in the road, she could feel that the edge of the catch basin was higher than the road itself. As a result of the fall, the plaintiff sustained a compound fracture dislocation of her right ankle, which included multiple fractures of both the tibia and the fibula of the right leg. On appeal the defendant contends that the trial court erred (1) in admitting the opinion evidence of the witness Alexander Chapman; (2) in charging the jury that the plaintiff was lawfully on the premises; (3) in submitting to the jury loss of future earning capacity as an element of damages; and (4) in denying its motion to set aside the verdict as excessive and contrary to law. The defendant first asserts that the opinion testimony of Alexander Chapman, a safety engineer called by the plaintiffs, was without factual foundation and was therefore entirely speculative. The challenged testimony related to the chipping which Chapman observed on the corners of the concrete catch basin on which the plaintiff claimed she fell. Chapman was asked whether he had an opinion, based upon his examination of the catch basin, as to how this chipping had occurred, and whether he had an opinion, based upon his experience as a safety engineer, as to the purpose of that chipping. The defendant's objections that those questions were "not relevant to the case before us" were overruled, and the testimony of the witness was admitted by the court. Trial courts have broad discretion in determining the relevancy of evidence. State v. Rose, 168 Conn. 623, 636, 362 A.2d 813 (1975); Johnson v. Newell, 160 Conn. 269, 277, 278 A.2d 776 (1971). In this instance the challenged questions were clearly relevant on the issue of whether the defendant had notice, actual or contructive, of the allegedly dangerous condition of the catch basin. See Warren v. Stancliff, 157 Conn. 216, 219, 251 A.2d 74 (1968). The record indicates further that a proper foundation was laid for those questions. The initial question sought the witness' opinion "as to how this chipping was accomplished." In the absence of the jury, the witness testified that it was the size and nature of the chipping which had led him to conclude that it was done by hand and that he was familiar with such hand chipping. He further testified that the usual reason for such chipping was to remove a difference in elevation in order to eliminate a tripping hazard. In any event, the later testimony of another engineer, Ivan Hayes, renders the defendant's objections moot. Hayes testified, without objection, that the catch basin had constituted a tripping hazard for at least eleven months prior to the plaintiff's fall. Thus, as the facts established by Chapman's testimony were otherwise established by the later testimony of Hayes, the error, if any, in allowing Chapman's testimony was harmless. DeCarufel v. Colonial Trust Co., 143 Conn. 18, 21-22, 118 A.2d 798 (1955). The defendant next claims that the court erred in charging the jury that the plaintiff was "lawfully on the premises." The defendant argues that the charge while "technically and . . . legally correct" was, as a practical matter, confusing as it implied that the plaintiff was properly in the roadway at the site of the catch basin and was therefore not chargeable with contributory negligence in failing to use the sidewalk located on the opposite side of the roadway. The court instructed the jury in part as follows: "Insofar as the particular relationship which existed between the plaintiff, Mrs. Hoadley, and the defendant, University of Hartford, is concerned, and the particular rights and duties which arise from that relationship, under the circumstances of this case, you may consider the plaintiff, Mrs. Hoadley, to have the status of a business visitor or invitee. Now, an invitee is one who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with the business dealings between them. This definition includes both those who enter the premises to do business there and those who are there in furtherance of their own business which is directly or indirectly connected with any purpose, business or otherwise, for which it possesses or uses the land. Accordingly, the plaintiff was lawfully on the premises as an invitee and entitled to the protection accorded by law to invitees." The court then went on to explain to the jury in the following manner the precise nature of the duty owed by a property owner to an invitee, i.e., to one lawfully on the premises: "Let me put it to you in this way: The basic question is whether a reasonably prudent person in the position of the defendant or its employees would reasonably have foreseen that there was an unreasonable risk of harm to such persons as the plaintiff coming onto this portion of the roadway at or about the time of her fall. If a reasonably prudent person would have realized that such persons were being exposed to an unreasonable risk of danger, the dangerous condition should have been safeguarded in some reasonable fashion. If the defendant or its employees failed to realize what a reasonably prudent person in their position would have realized, and failed to take reasonable steps to avoid the danger, if it was a danger, then they were negligent under the law." " [A] charge must be read as a whole . . . [and] the test is not whether it is exhaustive, [letter] perfect, or technically accurate . . . nor is it to be placed under a legal microscope for technical flaws." Gosselin v. Perry, 166 Conn. 152, 161-62, 348 A.2d 623 (1974). Having examined the court's charge, we conclude that it adequately and correctly apprised the jury of the rules of law which were to be applied to the evidence and that, in the context of the charge, the court's use of the term "lawfully on the premises" was neither confusing nor misleading. The defendant next maintains that because there was no evidence of any future impairment of the plaintiff's earning capacity, the court erred in charging on loss of future earning capacity as an element of damages. The record reveals that the plaintiff introduced evidence that after she sustained the injury to her ankle, she was unable to perform the maintenance and inspection activities which were a necessary part of her job, and that the incapacity would continue indefinitely into the future. There was medical evidence that the plaintiff now suffers a 30 percent permanent disability of the right ankle and the right leg and that while that disability is permanent and will not decrease, it may increase over the years. In snm, there was evidence in the record indicating that the plaintiff's future earning capacity may have been impaired in several regards: (1) in her continuing inability to perform some aspects of her job-related duties; (2) in the prospect that the 30 percent permanent disability of her right leg would worsen and would diminish her future ability to assume extra income-producing bus driving jobs; and (3) in that the plaintiff would have requested and received a pay raise from her employer long before September, 1974, had she not been incapacitated by this injury. While the burden of proving loss of earning capacity is always upon the plaintiff, the courts have never required "proof equivalent to a mathematical demonstration." Lavieri v. Ulysses, 149 Conn. 396, 408, 180 A.2d 632 (1962); Turner v. Scanlon, 146 Conn. 149, 159, 148 A.2d 334 (1959). The courts require only "that the evidence, with such certainty as the nature of the particular case may permit, lay a foundation which will enable the trier to make a fair and reasonable estimate." Ball v. Pardy Construction Co., 108 Conn. 549, 551, 143 A. 855 (1928); Turner v. Scanlon, supra. We conclude that the evidence presented as to the plaintiff's "incapacity to work as [she] had before the accident" and as to her future earning prospects provided a foundation upon which a reasonable estimate of damages could be based. With respect to the motions directed to the verdict, we conclude, in view of our resolution of the aforementioned issues, that the trial court did not err in denying the motion to set aside the verdict. There is no error. In this opinion the other judges concurred.

The petition by the defendants Kimberly Sprague et al. for certification for appeal from the Superior Court in the judicial district of Windham at Putnam is granted by the court. The named defendant's petition for certification for appeal from the Superior Court in the judicial district of Windham at Putnam is granted by the court.

The state's motion to terminate the stay of execution, as issued with specific conditions by this court February 15,1978, is granted by the court unless the defendant files with the court and with the office of the state's attorney on or before October 16, 1978, a copy of his petition for a writ of certiorari or a copy of the decision by the United States Supreme Court on his petition.

Peters, J. This case arises ont of a claim by the defendant that, at the time he entered three pleas of guilty, he was not adequately apprised of the nature of the criminal charges against him, in violation of the federal constitutional requirement that a guilty plea, to be valid, must be made knowingly and voluntarily. The trial court found the defendant, Eugene Childree, guilty of robbery in the first degree, larceny in the first degree, and assault in the third degree, in violation of General Statutes § 53a-134 (a) (3), 53a-122 (a) (l), and 53a-61 (a) (l) respectively, after accepting the defendant's pleas of guilty to those offenses. The charges facing the defendant resulted from two separate incidents. The robbery and larceny counts derived from the defendant's alleged theft of $161.31 from a 7-11 Store in Vernon on December 16, 1980. At 2:31 a.m. on that date, the defendant entered the store wearing a paper bag over his head and holding his hand threateningly on a tire iron concealed in his pocket. He ordered the clerk to open the cash drawer and, when the clerk complied, removed its contents and fled. Following his subsequent arrest, the defendant pleaded not guilty to an information charging him with the robbery and larceny counts, elected trial by jury, and was released on bail pending trial. On March 10, 1981, the defendant was again arrested and charged with, inter alia, assault in the third degree in connection with a second incident which occurred on March 1, 1981. The defendant pleaded guilty to the assault charge on April 1, 1981, and the other charges stemming from the second incident were nolled. Thereafter, the two matters were consolidated and the defendant entered into a plea bargain whereby, in return for his pleading guilty to the three remaining counts, the state would recommend sentences of not less than five and not more than ten years each for the robbery and larceny counts, and a sentence of one year for the assault count. Pursuant to the bargain, the sentences were to run concurrently for a total effective recommended sentence of not less than five nor more than ten years. Alternatively, under the relevant criminal statutes, the defendant faced, if convicted of all three counts, a maximum sentence of not less than twenty-one nor more than forty-one years. During the hearing at which the defendant entered his guilty pleas, the trial court addressed the defendant personally to determine his understanding of the nature of the charges against him. The court explained that a person is guilty of robbery in the first degree "if you commit robbery and in the course of the commission of the crime you are — you use or threaten the use of a dangerous instrument. Of course, robbery is the commission of larceny when you use threats of immediate use of physical force upon another person." The defendant, upon inquiry, indicated that he understood. The court then explained that "a person is guilty of larceny in the first degree when the property or service, regardless of its nature and value, is obtained by extortion; and, of course, larceny is very simply defined as taking property or appropriating to your own use property which belongs to another; and property obtained by extortion is when he compels or induces another person to deliver such property up by reason of instilling in him a fear that, if the property is not delivered, that you will cause him physical injury." The defendant again said that he understood. The court went on to inform the defendant of the nature of the assault charge against him, of the maximum penalty for each offense with which he was charged, and of the constitutional rights he was waiving by pleading guilty. To each item of information the defendant replied, upon inquiry, that he understood. After questioning the defendant as to the facts underlying the charges, the court found that the pleas were voluntarily made and that there was a factual basis for them. The pleas were accepted, judgments of guilty were rendered as to all three counts, and the defendant was subsequently sentenced to concurrent prison terms of from three to eight years each for the robbery and larceny counts, and of one year for the assault count. The defendant raises five issues on appeal. His first and second claims are that the trial court erred in determining that the plea of guilty to first degree larceny was knowing and voluntary, because, first, the trial court failed to apprise him of an element critical to the commission of that offense, i.e., a threat of physical injury to some person in the future; and, second, the facts to which he assented at the time he pleaded guilty failed to establish a basis for that same element of the offense. The defendant's third claim is that the sole element that distinguishes first degree larceny from first degree robbery is the futurity of the threat in the larceny offense; therefore, convictions for both offenses, absent a determination that such a future threat was made, expose him to double jeopardy. ' His fourth claim is that, under the circumstances, his lawyer's having advised him to plead guilty to first degree larceny deprived him of the effective assistance of counsel. The defendant's fifth and final claim is that the trial court's erroneous acceptance of the guilty plea to the larceny count rendered all three pleas defective. Because we agree with the defendant's first and fifth claims, we do not consider his claims of a lack of factual basis, double jeopardy, and ineffective assistance of counsel. We begin our analysis by noting that the proper procedure for raising a claim that a guilty plea was not knowingly and voluntarily made is to make that claim in the trial court in the first instance. See Practice Book § 719 through 722. There is no explanation on the record why this procedure was not followed. Nonetheless, because the error claimed by the defendant involves the violation of a fundamental constitutional right, we will consider it for the first time on appeal. State v. Godek, 182 Conn. 353, 356, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). It is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); State v. Godek, supra, 356; State v. Marra, 174 Conn. 338, 340, 387 A.2d 550 (1978); State v. Battle, 170 Conn. 469, 473, 365 A.2d 1100 (1976). A plea of guilty is, in effect, a conviction, the equivalent of a guilty verdict by a jury. Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Marra, supra, 345; State v. Battle, supra, 473. In choosing to plead guilty, the defendant is waiving several constitutional rights, including his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers. McCarthy v. United States, supra, 466. These considerations demand the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and its consequences. Boykin v. Alabama, supra, 243-44. We therefore require the record affirmatively to disclose that the defendant's choice was made intelligently and voluntarily. Boykin v. Alabama, supra, 242; State v. Godek, supra, 356; Blue v. Robinson, 173 Conn. 360, 373, 377 A.2d 1108 (1977). The defendant relies on Henderson v. Morgan, 426 U.S. 637, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976), for his claim that the trial court's alleged failure to apprise him of an element critical to the commission of first degree larceny has rendered his plea involuntary. In Henderson, the Supreme Court of the United States overturned a conviction based on a plea of guilty to second degree murder because the defendant had not been informed that intent to cause the death of his victim was an element of the offense. "[T]he plea could not be voluntary in the sense that it constituted an intelligent admission that he committed the offense unless the defendant received 'real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.' Smith v. O'Grady, 312 U.S. 329, 334 [61 S. Ct. 572, 85 L. Ed. 2d 859 (1941)]." Henderson v. Morgan, supra, 645; see State v. Collins, 176 Conn. 7, 10n, 404 A.2d 871 (1978); State v. Marra, supra, 345; Blue v. Robinson, supra, 381-82 (Speziale, J., dissenting). Comparison of the trial court's definition of first degree larceny with the statutory definition of the offense leads us to the conclusion that the futurity of the threat essential to a commission of larceny was not made clear to the defendant in the present case. General Statutes § 53a-119 provides, in relevant part: "A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes . (5) Extortion. A person obtains property by extortion when he compels or induces another person to deliver such property to himself or a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will: (A) Cause physical injury to some person in the future." (Emphasis added.) The trial court made only one reference to the futurity of the threatened harm, when it explained that: "extortion is when he compels or induces another person to deliver such property up by reason of instilling in him a fear that, if the property is not delivered, that you will cause him physical injury." (Emphasis added.) The state's argument that use of the auxiliary verb "will" is sufficient to denote futurity is unpersuasive because "will" may equally express the certainty or likelihood of a certain event occurring. We find its use in the context of the court's definition at least as suggestive of the latter meaning; 1. e., the certainty or likelihood of the threatened harm befalling the victim in the event that he chooses not to deliver the demanded property. The trial court's earlier emphasis, in its definition of first degree robbery, on the immediacy of the threatened harm integral to that offense does not cure the deficiency in the court's subsequent definition of first degree larceny. On the contrary, it serves to underscore the significance of the temporal element that was either ambiguous or absent in the definition of larceny. This record does not affirmatively disclose that the defendant was adequately informed of the "future harm" element of the larceny statute. No claim has been advanced that the trial court explained the futurity element of the crime of larceny elsewhere than in this one ambiguous phrase. We must therefore determine whether failure to inform the defendant about this element of future harm requires us to find a failure to ensure that the defendant possessed the "understanding of the law in relation to the facts" that characterizes a knowing and voluntary guilty plea. McCarthy v. United States, supra, 466; State v. Collins, supra, 9; State v. Marra, supra, 340. We recognize that Henderson v. Morgan falls short of announcing a per se rule that notice of the true nature of a charge always requires a description of every element of the offense. Henderson v. Morgan, supra, 647n. The trial court's failure to explicate an element renders the plea invalid only where the omitted element is a critical one; id.; and only where it is not appropriate to presume that defense counsel has explained the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. Id., 647. Under the circumstances of the present case, however, we consider the element of future harm to be critical to the commission of larceny by extortion. The use or threatened use of immediate physical force is the element which distinguishes larceny from robbery. State v. Tinsley, 181 Conn. 388, 398-99, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed. 2d 811 (1981); see LaFave & Scott, Handbook of Criminal Law (1972) § 94, p. 699. If futurity of the threat of harm is omitted from the larceny count, then the sole element distinguishing the two counts is the threatened use of a dangerous instrument in the robbery count. Absent future harm, it appears impossible to commit the robbery offense without also committing larceny. See State v. Tinsley, supra, 397. The omission in the court's explanation can therefore not be dismissed as inconsequential. Nor do the circumstances of the present case warrant a presumption that defense counsel adequately explained the charge of larceny to the defendant. The record gives no indication of snch an explanation; counsel advised the defendant to plead guilty to both larceny and robbery; and the defendant has raised a claim of ineffective assistance of counsel, which "is a factor to be taken into consideration in determining whether a guilty plea was voluntary and intelligent." Dukes v. Warden, 161 Conn. 337, 344, 288 A.2d 58 (1971), aff'd, 406 U.S. 250, 92 S. Ct. 1551, 32 L. Ed. 2d 45, reh. denied, 407 U.S. 934, 92 S. Ct. 2464, 32 L. Ed. 2d 817 (1972). We do not, on this record, attempt any judgment on the propriety of the claim of ineffective assistance of counsel. We note, however, that since the distinction between the counts of robbery and larceny is a subtle one, the court was "all the more responsible for guaranteeing that counsel and the defendant [had] explored the consequences" of pleading guilty to both offenses. State v. Collins, supra, 10n. We note finally that the defendant made no factual statement or admission necessarily implying that the threatened harm would occur in the future, nor did defense counsel stipulate to the fact. There is therefore nothing in the record which serves to supply the element omitted from the trial court's explanation. See Henderson v. Morgan, supra, 646; United States v. Johnson, 612 F.2d 305, 309 (7th Cir. 1980). Having concluded that the plea to the larceny charge cannot stand, we must determine whether the deficiency of this plea impaired the voluntari ness and intelligence of the pleas to first degree robbery and third degree assault. In holding that those pleas were not voluntary and intelligent as well, we are guided by our decision in State v. Collins, supra, where we held that a guilty plea was not intelligently made where the defendant did not know whether the resultant sentence would run concurrently or consecutively with one he was already serving. Id., 10. "The length of time a defendant may have to spend in prison is clearly crucial to a decision of whether or not to plead guilty." Id., 9-10. A conviction for the larceny count would have increased the defendant's maximum prison term from twenty-one to forty-one years, as the trial court duly informed him. Our review of the record does not persuade us that the risk of prolonged imprisonment added by the larceny charge was not a significant inducement to the pleas of guilty to the robbery and assault charges. The absence of direet evidence that the greater exposure created by the larceny charge induced the other pleas does not refute the defendant's claim that those other pleas were not knowing and voluntary, for two reasons. First, the record must affirmatively disclose that the pleas were knowing and voluntary; it is not the burden of the defendant to prove the contrary. Second, notwithstanding the state's assertion that its sentencing recommendations were separate and distinct as to all three counts, it appears to have been the understanding of the trial court and the defendant that a recommendation of concurrent sentences was a material aspect of the consideration given by the state in return for the defendant's pleas. The transcript reveals the following: "The Court: But it is your understanding, Mr. Childree, that the State is going to recommend at the time of sentencing the sentence of — .effective sentence on all three counts of not less than five nor more than ten years? "The Defendant: Yes, sir. "The Court: And that agreement upon the part of the State to make such a recommendation is part of the reason you decided to enter your pleas of guilty? "The Defendant: Yes, sir." That the defendant's awareness of the maximum sentence possible is an essential factor in determining whether to plead guilty is also recognized by Practice Book § 711, which provides, in relevant part: "The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands . (4) . if there are several charges, the maximum sentence possible from consecutive sentences . . ." Accord United States v. Ammirato, 670 F.2d 552, 555 n.2 (5th Cir. 1982); III ABA Standards for Criminal Justice (1980) § 14-1.4(a) (ii); ALI Model Code of Pre-Arraignment Procedure (1975) ^ 350.4(1) (e) (i). There is error, the judgment is set aside and the case is remanded with direction to permit the defendant to withdraw his pleas. In this opinion Speziale, C. J., Parskey and Shea, Js., concurred. "[General Statutes] See. 53a-134. robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . (3) uses or threatens the use of a dangerous instrument . . . ." "[General Statutes] See. 53a-133. robbery defined. A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny." "[General Statutes] Sec. 53a-122. larceny in the first degree: class b felony, (a) A person is guilty of larceny in the first degree when: (1) The property or service, regardless of its nature and value, is obtained by extortion . . . ." "[General Statutes] Sec. 53a-119. larceny defined. A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . ." "[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 . . . ." Robbery in the first degree and larceny in the first degree are class B felonies. General Statutes § 53a-35 (a) provides: "For any felony committed prior to July 1, 1981, the sentence of imprisonment shall be an indeterminate sentence . . . ." Section 53a-35 (b) provides: "The maximum term of an indeterminate sentence shall be fixed by the court and specified in the sentence as follows . . . (2) for a class B felony, a term not to exceed twenty years." Section 53a-35 (e) provides: "[T]he minimum term of an indeterminate sentence shall be fixed by the court and specified in the sentence as follows . (2) for a class B . . , felony the court may fix a minimum term of not less than one year nor more than one-half of the maximum term imposed . . . ." Assault in the third degree is a class A misdemeanor. General Statutes 5 53a-36 provides: "A sentence of imprisonment for a misdemeanor shall be a definite sentence and the term shall be fixed by the court as follows: (1) For a class A misdemeanor, a term not to exceed one year . . . ." Practice Book § 720 provides: "A defendant may withdraw his plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his plea upon proof of one of the grounds in See. 721. A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed." Practice Book § 721 provides: "The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows: (1) The plea was accepted without substantial compliance with See. 711; (2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed; (3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the court had deferred its decision to accept or reject the agreement at the time the plea of guilty Was entered; (4) The plea resulted from the denial of effective assistance of counsel; (5) There was no factual basis for the plea; or (6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant." Webster, Third International Dictionary (1971) defines "will" as "1 — used to express desire, choice, willingness, consent or in negative constructions refusal . . . 3a — used to express simple futurity . . . 3b — used to express simple action or intention without conscious reference to future time . . . ." The American Heritage Dietionary of the English Language (1978) defines it "1. simple futurity . . . 2. likelihood or certainty." Although we do not reach the merits of the defendant's claim that the trial court's questioning of the defendant failed to elicit a factual basis for the larceny, the facts as recited in the record and admitted by the defendant do not offer unequivocal proof that a future harm was threatened. See State v. Cutler, 180 Conn. 702, 704, 433 A.2d 988 (1980); State v. Marra, 174 Conn. 338, 343-45, 387 A.2d 550 (1978); State v. Battle, 170 Conn. 469, 473-74, 365 A.2d 1100 (1976); State v. Bugbee, 161 Conn. 531, 535, 290 A.2d 332 (1971) (invalidating guilty pleas where the facts to which the defendant assented on record failed to reveal all the elements of the crimes charged). The state's reliance on Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970), is misplaced in light of this provision of the Practice Book and our decision in State v. Collins, 176 Conn. 7, 404 A.2d 871 (1978). We need not now determine whether the subsequent overruling of a statute which may have induced a defendant's guilty plea retrospectively renders the plea involuntary or unintelligent. In the instant case, the miscalculation resulted from an error of presently existing law.

The plaintiff's petition for certification for appeal from the Superior Court in the judicial district of Hartford-New Britain at Hartford is denied by the court.

Spallone, J. The defendant has appealed from a judgment rendered for the plaintiff after a trial to the court. The first and second claims of error allege that the trial court erred when it admitted into evidence a sworn written statement that the defendant contends should have been excluded as hearsay evidence. The defendant's third claim of error is that the trial court utilized the incorrect standard of proof to support an award of treble damages pursuant to General Statutes § 52-564. In his first claim of error, the defendant directly attacks the admission of the alleged hearsay evidence and in his second and third claims of error he contends that without the hearsay evidence there was insufficient evidence to find for the plaintiff, and that there was insufficient proof to sustain an award of treble damages. On July 24, 1978, the home of the plaintiff, Gloria Schaffer, was burglarized. The stolen property included a McIntosh stereo, a gold Tiffany bracelet, a stuffed leather pig and a diamond ring. The ring, a three carat emerald cut diamond set in platinum, was purchased in 1948 for $3000. The plaintiff brought this action in three counts alleging conversion of the ring and the knowing receipt and concealment of it, and claiming, in her prayer for relief, money damages, punitive damages, and treble damages pursuant to General Statutes § 52-564. The trial court found the following facts. In July, 1978, the Connecticut state police were investigating a burglary which had occurred in Bethany. During the course of that investigation, Michael Marple came to the police headquarters and voluntarily gave a written statement regarding the burglary at the home of the plaintiff. In his statement, he related that approximately one week prior to August 3, 1978, Robert Mazzacane came to Marple's residence with the items stolen from the plaintiff and asked if Marple could sell the items. Marple and Mazzacane then spent the night at the home of Albert and Deborah DeCato, where discussions took place regarding the stolen property. The following day Marple took the stolen jewelry to the defendant's antique shop, known as Lindy's Antique Shop. Marple entered the shop while Mazzacane and another person, Andrew Johns, waited in a car. In his statement, Marple stated he sold the ring to the defendant at that time for $250, and then a few days later he went back and sold the gold bracelet also to the defendant for $250. He described the sale as having taken place with the two brothers who operated Lindy's Antique Shop. At the time of the respective sales, he was told by one of the brothers that the ring would be sold in Europe and that the bracelet would be melted and disposed of as bullion. Marple also disclosed that the stereo was sold to an individual, whom he identified, for $500. Albert DeCato saw the bracelet and stereo in the possession of Marple and Mazzacane. Deborah DeCato saw the ring, bracelet and the other items stolen from the plaintiff in the possession of Marple, Mazzacane and Johns and was told by those individuals that the ring was sold to Lindy's Antique Shop. As a result of the information obtained from Marple, the police searched Lindy's Antique Shop and found the missing bracelet in a safe in a back room, although they could not find the diamond ring. The defendant stated that he had purchased the bracelet on August 3, 1978, but had not purchased the ring. He stated that he paid $550 in cash, but did not make a record of the transaction and did not seek proof of ownership from the seller. The defendant was arrested for receipt of stolen goods and was convicted of larceny in the first degree. The plaintiff presented evidence that the defendant, Gerald Lindy, had received and concealed the ring, knowing that it was stolen. In addition to her previously described testimony, Deborah DeCato testified that she was present and had witnessed Marple selling the stereo to a person named Mark, who lived in Orange. The defendant did not object to Mrs. DeCato's testimony regarding the sale of the ring and bracelet to the defendant, but did object when the witness testified that the three men acknowledged selling other stolen items to Lindy in the past. The objection was ruled untimely and no exception was taken. Another witness, William Gordon, a retired state police officer, testified that Marple had given a sworn statement outlining Marple's participation in the disposal of the stolen property. On the basis of the statement, Gordon applied for the search warrant that led to the recovery of some of the stolen items. Marple's statement indicated that he had sold the items to the defendant. Marple's sworn statement was admitted into evidence under the declaration against pecuniary interest exception to the hearsay rule. The court found the issues for the plaintiff and rendered judgment that the plaintiff recover treble damages from the defendant in the amount of $26,988. The defendant's claim that the court erred in admitting Marple's sworn statement is predicated upon the fact that the plaintiff failed to establish the unavailability of Marple as a prerequisite to the admission of the statement, and further failed to establish that the statement was trustworthy. The defendant concedes that Marple's sworn statement was a declaration against both his penal and pecuniary interest. See, e.g., Ferguson v. Smazer, 151 Conn. 226, 232, 196 A.2d 432 (1963). The defendant concedes, also, that because Marple was incarcerated, he was physically unavailable to testify, but argues that his testimony was available by way of deposition which precluded the use of his sworn statement. We disagree. In determining the unavailability of a witness where the admissibility of a statement against penal interest is in issue, Rule 804 (a) of the Federal Rules of Evidence is instructive. See, e.g., State v. Frye, 182 Conn. 476, 482-83, 438 A.2d 735 (1980). Subsection (5) of the rule provides that a declarant witness may be considered unavailable if he is "absent from the hearing and the proponent of his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision (b) . (3), . his attendance or testimony) by process or other reasonable means." This particular provision of the rule was " 'designed primarily to require that an attempt be made to depose a witness (as well as to seek his attendance) as a precondition to the witness being deemed unavailable.' " United States v. Gabriel, 715 F.2d 1447, 1451 (10th Cir. 1983), quoting H.R. Rep. No. 650, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Ad. News 7051, 7075, 7088. "[I]t would be a mistake [however] to read the phrase, 'unable to procure his . . . testimony' by deposition, woodenly. There may be instances in which it is impracticable but not legally impossible to obtain a deposition. Where a relatively small claim, for example, would be overbalanced by the cost of a foreign deposition or where the evidence comes to light during the trial and a continuance is not possible, the proponent can be found to be 'unable' to procure the deposition. This interpretation is enhanced by reading the phrase 'reasonable means' to cover both depositions and physical procurement of the witness — a parsing consistent with the clause's syntax." Weinstein, Evidence § 804 (a) [01]. The ultimate question of the availability of a witness is a question of fact to be determined by the trier. Fontaine v. Coyle, 174 Conn. 204, 209, 384 A.2d 616 (1978). Although the rules of evidence regarding the use of out of court statements when a witness is unavailable apply to both civil and criminal cases; Reilly v. DiBianco, 6 Conn. App. 556, 564, 507 A.2d 106 (1986); the differences in procedural rules for compelling the attendance of witnesses in the two types of cases, and the overriding constitutional considerations present in the criminal context, lead to varying connotations of unavailability depending on the type of circumstances involved in each case. Weinstein, supra. Cognizant of the fact that Marple was incarcerated in Massachusetts at the time of trial, the court determined as a matter of fact that Marple was unavaila-. ble. A review of the transcript reveals that the trial court's determination was based on a deliberate review of the particular circumstances present, and its interpretation of the applicable legal authorities. Rule 804 (a) (5) requires that the witness be absent from the hearing as the first prerequisite for the admission of such a statement. It is conceded that Marple was absent. The second prerequisite is that the proponent of the statement be unable to procure the testimony of the witness "by process or other reasonable means." Such a statement therefore is admissible if the testimony cannot be had by "reasonable means" or by process which is reasonable. The word "other" indicates that process, as well as other methods of obtaining testimony, be reasonable. Even if the taking of a deposition is considered "process," the obtaining of it must be "reasonable" in light of the particular facts and circumstances surrounding the inability of the party seeking the admission of the statement to procure the attendance of the witness. The trial court, considering the facts of the incarceration of the witness in another state, the civil nature of the case, the amount of damage at issue in this controversy, and the effort, time and cost involved in taking the deposition of a person incarcerated in a prison located in another state, could reasonably have concluded that Marple was "unavailable" for the purpose of allowing his sworn statement into evidence. It is impossible to provide a rule with written parameters sufficient to govern all cases. It cannot be stated that depositions should be taken if a witness is incarcerated in neighboring states but not in Alaska or Hawaii, or that depositions should be attempted or taken if the amount at stake is a given dollar amount, but not if they are lesser than that dollar amount. Such subsidiary questions and their resolution should be left to the discretion of the trial court. The court's conclusion was consistent with the principles and policies stated above, which are to be considered when deciding such a question. We conclude, therefore, that the trial court did not exceed or abuse the discretion vested in it in finding the witness unavailable for the purpose of admitting his sworn statement. The defendant's claim that there was no shoving that Marple's sworn statement was trustworthy must also fail. The testimony of Deborah DeCato and Gordon confirm that the statement led to the recovery of most of the articles taken in the burglary. The items were located at the sites indicated in the statement and this fact, along with the other times, places and events mentioned in the statement and corroborated by the witnesses, tended to enhance the reliability of the statement. The question of trustworthiness is also one of fact to be determined by the trier, and a court is given broad discretion to determine whether a third party declaration against penal interest is trustworthy. State v. DeFreitas, 179 Conn. 431, 452, 426 A.2d 799 (1980). Marple's sworn statement had more than sufficient indicia of trustworthiness, and we cannot say that the trial court's finding was clearly erroneous. Regarding the defendant's next claim as to the sufficiency of the evidence, we conclude that with Marple's statement the trier had more than ample evidence to support its findings and conclusions. Even without the statement, however, our review of the record, transcript and evidence clearly indicates that there was a sufficient basis for the court's findings as to the elements of knowingly receiving and concealing the ring stolen from the plaintiff to support its judgment. The defendant's final claim relates to the standard of proof required to support an award of treble damages pursuant to General Statutes § 52-564. It is clear that an award of treble damages is an extraordinary statutory remedy. See Alaimo v. Royer, 188 Conn. 36, 43, 448 A.2d 207 (1982); DeMilo v. West Haven, 189 Conn. 671, 676, 458 A.2d 362 (1983). Also, when treble damages are sought pursuant to § 52-564, the plaintiff is not required to prove his case beyond a reasonable doubt. Munson v. Atwood, 30 Conn. 102, 103-104 (1861). Generally, facts which constitute a crime need not be proven beyond a reasonable doubt if they are at issue in a civil action. 30 Am. Jur. 2d, Evidence § 1169. It is ordinarily sufficient in civil cases to prove the existence of the criminal act by a preponderance of the evidence. Mead v. Husted, 52 Conn. 53, 56 (1884). "However, clear and convincing proof is a standard frequently imposed in civil cases where the wisdom of experience has demonstrated the need for greater certainty, as where this high standard is required to sustain claims which have serious consequences or harsh or far-reaching effects on individuals, to prove willful, wrongful and unlawful acts, to justify an exceptional judicial remedy, or to circumvent established legal safeguards . . . ." (Footnotes omitted.) 32A C.J.S., Evidence § 1023; see, e.g.,Dacey v. Connecticut Bar Assn., 170 Conn. 520, 368 A.2d 125 (1976). We conclude, therefore, that clear and convincing proof of the actions alleged is required in order to assess treble damages pursuant to § 52-564. The plaintiff raised properly her claim for treble damages in the third count of her complaint. Having found the defendant liable to the plaintiff, the trial court concluded that the defendant was subject to the provision of § 52-564. The court's memorandum of decision, however, does not set out the standard of proof employed in reaching this conclusion. Where a memorandum "is silent as to the standard of proof used, it will be assumed [in a civil matter] that the one ordinarily applied in most civil cases, that of a fair preponderance of the evidence, was used. If the trial court neither states nor implies that it is applying the proper standard of proof, it is impossible for an appellate court to determine whether the trial court, had it applied the required standard of proof, would still have rendered judgment as it did. . In such instances, a new trial is necessary." (Citations omitted.) Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 297-98, 478 A.2d 257 (1984). There is error in part, the judgment is set aside and the case is remanded for a new trial limited to the issue of whether treble damages should be awarded pursuant to General Statutes § 52-564. In this opinion the other judges concurred. General Statutes § 52-564 provides: "Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." Rule 804 (a) lists five situations in which the declarant witness may be considered unavailable: "(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement; or (2) persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so; or (3) testifies to a lack of memory of the subject matter of his statement; or (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision (b) (2), (3), or (4), his attendance or testimony) by process or other reasonable means." Subsection (b) (3) of Rule 804 contains an exception to the hearsay rule for statements against the declarant's pecuniary, propietary or penal interests. In a criminal case, the right of an accused to confront his opponent is a constitutional right which imposes a stringent burden upon a prosecutor to procure a witness' attendance or testimony. See Barber v. Page, 390 U.S. 719, 724-25, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968).

The defendant's petition for certification for appeal from the Appellate Court is denied.

MOLLOY, J. In this action the plaintiff, a Massachusetts corporation, with its principal place of business in the City of New Bedford, seeks to recover possession of an automobile mortgaged to it by one Frank Perry Ponte on December 7, 1936 for $663.80. Ponte paid the first monthly installment of $25.00. On February 10, 1937, he brought the car to East Hartford, Connecticut, where he sold it to the State Motor Sales Corporation for $550. On February 13, 1937 the State Motor Sales Company, Inc., sold the car to the defendant, David W. Macintosh. About two months after the mortgage by Ponte to the plaintiff, the car and Ponte having disappeared, and he being in default on his February 7th payment to the plaintiff, the latter reported the loss to the police. Subsequently it was located and on June 16, 1937 this replevin action was instituted by the plaintiff, and the car taken from the defendant. The culprit, Frank Perry Ponte, is now a fugitive from justice. While Macintosh is the named defendant, The State Motor Sales Company, Inc., is the real party in interest. The question is upon whom under the circumstances shall the loss fall; who of these parties is to suffer. The defense alleged is that the defendant was a prima facie purchaser "in that the mortgage and conditional bill of sale alleged in the complaint were not recorded, and the defendant was therefore without notice." The defendant also counterclaims that he is the true owner and entitled to possession of the car in question. The plaintiff contends title is in it. The defendant, however, in evidence and argument claims that this is not true in law because: (1) The alleged mortgage was invalid; (2) there was no change of possession; (3) the plaintiff was guilty of laches, negligence and fraud, and by its action waived the consent mentioned in the mortgage and conditional sales contract and necessary for a sale of the car by Ponte; (4) that plaintiff is now estopped to claim the car; (5) that Ponte did not own the Ford car which was used in part payment of the car now in suit, hence the mortgage, Exhibit A, is void; and, (6) the equities of the defendant are superior to those of the plaintiff. The evidence, it seems to me, does not warrant any other conclusion than that the dealings between the plaintiff and Ponte were legitimate and proper. Ponte bought the car in question from Cape Chevrolet, Inc., of New Bedford. It is true he bought it with the financial assistance and help of the plaintiff in that the plaintiff owned the Ford car. That is, Ponte owed the plaintiff a balance thereon, and the plaintiff had what is called in Massachusetts a lease on the car. The plaintiff also gave Ponte $284 as evidenced by check, plaintiff's Exhibit D, to complete the purchase price. The Ford car was traded in for the new car. This was with the permission of the plaintiff expressed both to Ponte and the Cape Chevrolet Company. Ponte received from Cape Chevrolet, Inc., plaintiff's Exhibit E, a bill of sale, or as may more properly be called, an invoice. He then returned to the plaintiff with, this and thereupon executed and delivered to the plaintiff the.mortgage, plaintiff's Exhibit A, and note, plaintiff's Exhibit B, for $663.80, payable to the plaintiff in installments of $25.00 monthly. The mortgage was immediately recorded in the office of the Town Clerk of New Bedford where Ponte resided and where the plaintiff then and now does business. For the purposes of this transaction, between Ponte and the plaintiff, Ponte now owned the new Chevrolet car, and in order to secure the plaintiff for the money he had advanced him to enable him to have the new car, he gave the plaintiff a note and mortgage on the car. Ponte had a special property in the Ford car which he could convey with the consent of the vendor or mortgage without his consent. Keepers vs. Fleitmann, 213 Mass. 210, 211. "Fair consideration is given for an obligation—here the mortgage—'when such . . . obligation is received in good 1 faith to secure . . . (an) antecedent debt in amount not disproportionately small as compared with the value of the . . . obligation obtained.' " Shay vs. Gagne, 275 Mass. 386, 390, 176 N. E. 200, 201. Now, it is claimed that a change of possession is required, under Massachusetts law, and that personal property may not be so mortgaged. This requirement of the common law, name' ly, a change of possession is dispensed with by the statute and is not now the law of Massachusetts. The purpose of the recording statute is to dispense with that requirement. An examination of the following statutes further indicates the present law: "Mortgages of personal property shall, within fifteen days from the date written in the mortgage, be recorded on the records of the town where the mortgagor resides when the mortgage is made, and on the records of the town where he then principally transacts his business." Anno. Laws of Mass., ch. 255, §1. Section 83 of chapter 266 of the Anno' tated Laws of Massachusetts, provides: "A mortgagor of personal property who sells or conveys the same or any part thereof without the written consent of the mortgagee, and without informing the vendee or grantee that the same is mortgaged, shall be punished . . ." The recording statute is construed in Williams vs. Nichols, 121 Mass. 435, 436: "The statute provides that mortgages of personal property shall be recorded on the records of the city or town wherein the mortgagor resides, and on the records of the city or town in .which he principally transacts his business; and that, 'unless a mortgage is so recorded, or the property' mortgaged is delivered to and retained by the mortgagee, it shall not be valid against any person other than the parties-thereto.' " It is quite evident from a reading of Travis vs. Bishop, 54 Mass. 304, cited by the defendant, that the case applies to an unrecorded mortgage in which event the mortgaged property must be delivered; and if there is no delivery or no recording then the puchaser takes the property with good title. Denno vs. Standard Acceptance Corp., 277 Mass. 251, sets out the law clearly relative to mortgage of personal property with or without change of possession. This was a case where an automobile dealer mortgaged to the defendant automobiles-, which were on display for sale. In four cases such automobiles had been sold without regard to the terms of the mortgage, and there too, an inference was justified that sales were-expected to be made in which the buyer would be left in. actual ignorance of any limitation on the authority of the seller to give a good and complete title. The Court, at page 254, said that section 25 (1) of the Massachusetts sales act provides " 'If goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the -goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the sellers authority to .seU'. It is essential to his full ownership of the automobile purchased by him on June 10, 1930, that it appear that the seller was acting under the authority of the owner or that the owner has by his conduct precluded himself from denying the .seller's authority—either or both. The law has long been .settled that a third person may show that a mortgagor's agree' -ment set out in a mortgage that he will not sell except with the written consent of the mortgagee never was binding, or has been waived or modified by the parties to the mortgage expressly or by implication." In other words, a mortgage of an automobile is valid when recorded, unless the defendant can show that the written con' sent of the mortgagee contained in its mortgage and necessary in order for the mortgagor to convey, never was binding or had been waived or modified by the parties expressly or by implication. The recording of the mortgage otherwise con' stitutes it a valid lien on the car sold. When the mortgage was recorded it gave constructive notice of the trust to all •creditors and purchasers so that they could not, by attachment •or grant of the mortgaged property, take it discharged of the trust. Eastman vs. Foster, 49 Mass. 19. The mortgage in the instant case was recorded. There is mo question about this, although it is asserted to the contrary in the defendant's answer and principally relied upon therein. The claim of laches by. the defendant has no valid basis in the evidence. The other claims of the defendant may be treated together. In these the defendant contends that the plaintiff was guilty of negligence and fraud, and is estopped by its conduct to now claim title and possession of the car. These defenses center around defendant's Exhibit 2, referred to as a bill of sale. As I have said, it is really an invoice of the sale of the •car from Cape Chevrolet, Inc., to Ponte and is an exact copy •of plaintiff's Exhibit' E, in all of the latter's typewritten mat' -ter. The printed matter is missing. The defendant makes much of the claim that the plaintiff allowed this invoice, or as it has been referred to, bill of sale, to remain in the possession of Ponte after he had mortgaged the car to the plaintiff, thus enabling him to deceive an innocent purchaser for value. This constituted fraud and negligence on the part of the plaintiff, so the defendant contends, and amounted to a waiver of the consent otherwise necessary, by the plaintiff to a valid sale by Ponte. I do not agree with this contention. Plaintiff's Exhibit E is the original invoice or bill of sale. It was this which was given to the plaintiff by Ponte when he returned with the new Chevrolet. It is significant that this receipt of the payment due on the invoice is signed by D. Schofield, whereas in defendant's Exhibit 2, which Ponte had in his possession when he sold the car to State Motor Sales, payment in full is acknowledged by the Cape Chevrolet's agent, Dias. Why the two invoices or receipts? Defendant's Exhibit 2 is either a forgery or was obtained by Ponte from Cape Chevrolet, Inc., at a subsequent date to that of Exhibit E and dated back. In other words, Ponte got two invoices from Cape Chevrolet, Inc., and had them receipted by different agents or employees of that company. Ponte apparently in keeping with his plan to defraud, retained Exhibit 2 and used it with effectiveness on State Motor Sales. There isn't any evidence to support the claim of fraud, negligence, or of waiver on the part of the plaintiff. There is no evidence that it knew at all of the second invoice, Exhibit 2, which Ponte possessed. But Ponte had a purpose in getting the two invoices. He succeeded in that purpose and then became a fugitive from justice. I may observe that State Motor Sales, with two agencies allegedly assisting it at the time it bought the car in question from Ponte, could easily have ascertained whether or not Ponte had a right to sell by 'phoning the Town Clerk's office in New Bedford. Furthermore, these two agencies being apparent specialists in the checking up of automobiles possessed under suspicious circumstances should have known that under Massachusetts law a car can be mortgaged. They apparently "slipped up" in the case of Frank Perry Ponte. They will know better next time. In addition, as the plaintiff points out in his brief, these defenses with the others, except estoppel, should have been specially pleaded. They were not. There was no waiver of consent necessary to sell. Even if there were, it could not be taken advantage of under the defendant's pleading. It should have been specially pleaded. Goldner vs. Polak, 108 Conn. 534, 537. On the day that Ponte executed the mortgage and note, Exhibit A and B, to the plaintiff, the latter executed a conditional sales contract, Exhibit G, to Ponte. While this conditional sales contract is referred to in the plaintiff's complaint, it was not relied upon by the plaintiff on the trial. It based its right of recovery on the mortgage only. In any event, Ponte could have mortgaged his special property under the conditional sales contract to the plaintiff. Keepers vs. Fleitman, supra; Chase vs. Ingalls, 122 Mass. 381. The issues are therefore found for the plaintiff on the defendant's counterclaim, and judgment is directed for the plaintiff on his complaint to recover one dollar nominal damages, and title and possession of the car in question.

CORNELL, J. The alternative writ, after describing the authorized capital stock of the respondent corporation states that the relator is the owner of 140 shares thereof; that he had made several demands on the respondent for permission to examine the books of said corporation, "for the purpose of determining whether there is waste, extravagance or mismanagement in the operation of said corporation and for the purpose of determining its financial status" and that these demands have been refused. Upon this statement of facts the writ requires the respondent to allow the relator to inspect its books, "for the purpose of determining the financial status of said corporation" or that cause to the contrary be signified within a time limited. The motion to quash is equivalent, under our practice, to a demurrer (State ex rel. Foote vs. Bartholomew, 103 Conn. 607, 611), and as, under our rules, all demurrers are required to be special (Gen. Stat. [Rev. 1930] §5507; Walko vs. Walko, 64 Conn. 74, 77; Miller vs. Cross, 73 id. 538, 541), grounds 1 and 2 of the motion cannot be considered since neither of them points out any particular in which the writ is insufficient or defective. Grounds 3, 4, 5 and 6 may be grouped together. Certain of those advance the proposition that the writ is insufficient because it does not affirmatively appear therefrom (1) that the relator seeks to examine the respondent's books for a pur' pose concerned with his interests as a stockholder or those of the corporation; (2) that his purpose is not merely vexatious. Unlike a stockholder's right to inspect the stock ledgers of a corporation in which he holds shares, which has been made absolute by statute (State ex rel. Eliott vs. Lake Torpedo Boat Co., 90 Conn. 638), his right to examine its books which re' veal its financial status and those which afford information concerning the results of the operation of its business is, in the absence of statutes enlarging it, a qualified one. Baydrop vs. Second National Bank, 120 Conn. 322, 330; State ex rel. Costelo vs. Middlesex Banking Co., 87 id. 483, 485, 486. The qualifications are that its exercise be (a) germane to his interests as a stockholder, (b) lawful in its character and (c) not inimical to the interests of the corporation, itself. Baydrop vs. Second National Bank, supra; State ex rel. Costelo vs. Middlesex Banking Co., supra. From which it fob lows that it will not be permitted to be asserted where its purpose is merely vexatious and, palpably this will be so, where the exercise of the right would be actually hostile to the corporation. Baydrop vs. Second National Bank, supra; State ex rel. Costelo vs. Middlesex Banking Co., supra; Hemingway vs. Hemingway, 58 Conn. 443, 444. In the instant case, the reasons assigned by the relator to inspect the corporate books are two, viz., (1) for the purpose of determining the corporation's financial status and (2) for the purpose of determining whether there is waste, extrava' gance or mismanagement in the operation of the business in which it is engaged. Without intending to rule that recourse to the means provided by section 1394c of the Cumulative Supplement to the General Statutes (1935) is either exclusive or a condition precedent tó the maintenance of an appropriate action by a stockholder to enforce his qualified right to inspect the books of a corporation, it does appear that a channel is open to the relator here to obtain "complete and detailed" in' formation of the respondent corporation's financial condition. And, see section 3409 of the General Statutes, Revision of t930. There is no allegation that relator has demanded such a report as the statute provides for and has been refused it, or that if he has asked for and been furnished with it, it has failed to accurately inform him concerning the respondent's "financial status." While, as noted, this is not of decisive consequence, the use or attempted employment of the means of information furnished by the statute, if alleged, might have some relation to the relator's good faith. As concerns the second of the reasons stated, the writ is without any intimation that the relator believes or has any reason to believe that the administration of the respondent's business has been marked by "waste, extravagance or mismanagement." It is only said that the relator wishes to examine the corporate books and records, to "determine" whether this is so or not and—in the absence of any statement showing otherwise—without even a suspicion or fear (to say nothing of a reasonable ground for belief) that such conditions may be found to exist. Relator's mission is, hence, stated to be merely speculative and so does not evidence that good faith which is required to attend and characterise his purpose as noted in grounds 6 and 7 of the motion. Baydrop vs. Second National Bank, supra. It will be unnecessary to comment upon the fifth ground of the motion in view of the conclusions reached here. It is evident from the writ as a whole that the relator regards his right as a stockholder to inspect the corporate books of account as an absolute one, but as noted supra it is a qualified right only, which is another way of saying that it is non-existent or, at least, incapable of being asserted unless the presence of the conditions necessary to vitalise it are shown to exist. As the writ fails to state facts of that character it states no cause of action. Parenthetically, though the defect is not mentioned in the motion to quash, it is to be noted that the writ runs against the respondent corporation, only, instead of a particular officer or officers of the corporation and so is defective in that respect. State ex rel. Eliott vs. Lake Torpedo Boat Co., supra, pp. 646, 647; and compare, Comley, State's Attorney, ex rel. Donovan vs. Lawlor, 120 Conn. 610. The motion to quash is sustained on grounds 3 to 7, bothi inclusive.

INGLIS, J. It should be noted that the purpose of these motions can not be to obtain information or evidence upon which to base an attack on the validity of any indictment which has been found on the strength of that evidence. This action was instituted, not on an indictment, but on an information, and, accordingly, theer is no indictment, for the accused to attack. The attack on the information based on claimed irregularities in the grand jury proceedings has already been made in the pleas in abatement (6 Conn. Sup. 215) and motions to quash (6 Conn. Sup. 227). On the pleas in-abatement, no evidence was needed because the various questions were raised by demurrer. On the motions to quash,, none of the accused expressed any desire to offer any evidence. Moreover, those pleas in abatement and motions to quash have already been passed upon. It is clear, therefore, that at this stage of the proceedings the minutes of the grand jury proceedings are not desired by the accused to lay the basis for an attack on the information. On the contrary, it is apparent that the only purpose which could be served in throwing the minutes of the grand jury proceedings open to the accused is that it would enable them somewhat better to prepare for the trial of the case. The law in other jurisdictions, where grand juries are used more commonly than here, seems to be uniform to the effect that it is discretionary with the Court to allow access to the grand jury minutes where that is reasonably necessary to obtain evidence in support of a move to attack the indictment returned by the grand jury on the ground that it was illegally found, but that it is never proper where the only purpose is to assist the accused to prepare for the trial of the case itself. Wharton, Criminal Evidence (11th ed., 1935) says, at page 1355 of volume 2: "It is also the general rule that an accused in a criminal case has no right to an inspection of the minutes of the grand jury returning the indictment against him, either before or during the trial, but this is a matter resting in the discretion of the court, and. where some special reason exists, such as to enable the accused to properly move to set aside the indictment, he may be permitted to inspect the minutes of the proceedings." Wigmore, Evidence (2nd ed., 1923) at page 154 of volume 5, lists six cases in which the law of privilege and secrecy as to grand jury proceedings ceases to operate, to wit: (a) for the purpose of impeaching witnesses on trial by showing that they testified differently before the grand jury, (b) in prosecutions for perjury committed before the grand jury, (c) to prove the mere fact that a witness testified (and this because it is common practice under statutes to furnish the accused with a list of the witnesses against him), (d) in an action in which the plaintiff is seeking redress for defamation or malicious prosecution, (e) where the accused pleads immunity under immunity statutes on the ground that he has testified before the grand jury, and (f) where it is sought to impeach a witness by evidence of expressions of bias made by him before the grand jury. Wigmore, although he is arguing for the relaxing of the strict rale of secrecy as to grand jury proceedings, does not claim that the law is that it should be relaxed simply for the purpose of assisting the accused to prepare for trial. Of all of the cases cited on the briefs and many others which have been examined, not a single case has been found which actually holds that the accused should be allowed to inspect the minutes of the grand jury for the purpose of preparing himself for trial. In New York, it is true that there is one case, Peo vs. Klaw, 53 Misc. 158, 104 N.Y.S. 482, which, purely by way of dictum, says that the minutes may be exposed to determine various facts bearing upon the validity of the indictment and also to enable a defendant to go to trial more fully prepared. But no case has been found in New York in which inspection of the minutes was actually allowed for that purpose. The law of New York is established in Matter of Montgomery, 126 App. Div. 72, 110 N.Y.S. 793. That case holds that an inspection of the grand jury minutes may be had in the discretion of the Court to enable a defendant to set aside the indictment on the ground that it was not properly found, but can not be had for the purpose of assisting the defendant in his preparation for trial or for the purpose of putting the State's testimony in the hands of the defendant. And the holding of that case is approved in the opinion by Cardoso, Ch. J., in Peo. ex rel. Lemon vs. Supreme Court, 245 N.Y. 24, 156 N.E. 84. Some of the cases in other jurisdictions, which hold definitely that it is improper to expose the grand jury minutes to a defendant for the purpose of permitting him the better to prepare his case for trial, are: Hofler vs. State, 16 Ark. 534; Cannon vs. People, 141 Ill. 270, 30 N.E. 1027; Merrick vs. State, 63 Ind. 327; Howard vs. Com., 118 Ky. 1, 80 S.W. 211; State vs. Rhoads, 81 Ohio St. 397, 91 N. E. 186; Havenor vs. State, 125 Wisc. 444, 104 N.W. 116, and a long list of cases set forth in a note at 27 L.R.A. (N.S.) 558. In some of these cases, the only thing asked was permission to inspect the testimony of the accused himself before the grand jury, and that was denied. In some of the cases the situation was also that there had been no preliminary hearing before a committing magistrate, but it was held that that did not vary the rule. In Connecticut the question as to whether the minutes of the grand jury proceedings should be opened to the accused to assist him in preparing for trial has never been decided by the Supreme Court of Errors. However, as will be pointed out in a moment, the reason for denying the right to inspect rests ultimately on the fundamental principle that proceedings before a grand jury are to be kept secret. This principle is well established in the law of this State. State vs. Fassett, 16 Conn. 457; State vs. Coffee, 56 id. 399. Indeed, State vs. Fassett goes so far as to say by way of dictum that the secrets of the grand jury room may not be violated even for the purpose of invalidating the indictment, but only for the purposes of prosecutions for perjury and contradicting witnesses. State vs. Coffee, it is true, casts some doubt on the proposition that evidence as to what transpired in the grand jury proceedings may be received only in prosecutions for perjury or to contradict witnesses and reserves the question as to whether there may not be some other situations in which the secrets of the grand jury proceedings may be divulged. It recognises the principle, however, that those secrets should be divulged only when necessary in the interests of justice and to secure the rights of individuals, and that is just the principle upon which all of the cases in other jurisdictions denying the right to inspect grand jury minutes in preparation for trial are decided. It is true that Daly vs. Dimock, 55 Conn. 579, holds that testimony taken by a coroner must be thrown open to the inspection of an accused. That however has no bearing on the present question because so far from being secret, the proceedings before a coroner are public to the extent that the statute requires the filing of the coroner's minutes with the clerk of the Superior Court and it was that requirement of the statute which formed the basis of the decision. Upon authority, therefore, it is inconceivable that the law on this subject of the right to inspect grand jury minutes is any different in Connecticut from what it is in other jurisdictions. The reasoning by which the authorities reach the conclusion that although an inspection of the grand jury minutes may be ordered for the purpose of laying a foundation for an attack on the validity of the indictment, it should not be ordered to assist the accused in his preparation for trial is as follows: It is fundamental that proceedings before a grand jury are to be kept secret unless the interests of justice or the rights of the parties make it clearly necessary to disclose them. It is not true as has sometimes been said loosely in some of the cases and by some of the text writers that the reason for the rule of secrecy ceases after the grand jury has returned an indictment and the accused has been arrested. One of the cogent reasons for maintaining that secrecy is, as it is put in Com. vs. Mead, 12 Gray (Mass.) 167, 170, 71 Am. Dec. 741, "that perjury and subornation of perjury may be prevented by withholding the knowledge of facts testified to before the grand jury, which, if known, it would be for the interest of the accused or their confederates to attempt to disprove by procuring false testimony." That reason for secrecy continues to operate until the trial is over. After all, the evidence taken by the grand jury makes up the State's case. To expose that case to the accused and thereby put him in a position where he could tamper with the State's witnesses or, knowing all of the details to which they were going to testify, manufacture evidence to overcome the State's case, would not promote the ends of justice. So far as the argument of fair play is concerned, the accused of course is entitled to be fairly apprised of the charge upon which he is to be tried, but fair play does not demand that he be given an exhibit of the testimony by which the State expects at the trial to sustain that charge. There is no way in which the accused may be compelled to disclose to the State in advance of the trial the evidence which he will produce on the trial. It is hardly fair play to compel the State to expose its case in full while the accused keeps secret the evidence which he intends to spring as a surprise on the trial. The reason for permitting an inspection of the minutes for the purpose of attacking. the validity of the indictment but denying it for the purpose for preparation for a trial is that in the former situation it is absolutely essential to do so for the protection of the rights of the accused, whereas in the latter it is not. If the accused is claiming that some irregularity in the proceedings invalidates the indictment, the only way in which he can substantiate that claim is by proving what the proceedings were. That can be done only by introducing in evidence the minutes of those proceedings. In such a situation the grand jury minutes are admissible as direct evidence. On the trial of the case the testimony of witnesses given before the grand jury is not admissible as direct evidence. If some of it becomes admissible to impeach the testimony of witnesses on the trial by showing that they testified otherwise before the grand jury, that may well be handled in the same way as a written statement made by the witness out of Court is handled; that is, by the Court inspecting the statement and, if it appears to be contradictory to the witness' testimony, handing it over on the trial to be introduced in evidence; If that method adequately protects the rights of a litigant as regards the contradicting of testimony of an opposing witness by showing that he has made a different statement to the opposing litigant's investigator, it will adequately protect the rights of an accused to show that a witness has made a different statement to the grand jury. In neither situation does the litigant nor the accused need to have the contradictory statement in his possession before trial in order to protect his rights. In other words, it is not reasonably necessary for the protection of the rights of the accused, nor is it in the interests of justice, that an accused be given the minutes of the grand jury before trial so that he may use them to prepare for trial. This reasoning found in the cases is so forcible and con' vincing that it must be recognised in Connecticut as well as elsewhere as good law. It is, therefore, concluded that the law in Connecticut is that it is not proper to permit an ac.' cused person to inspect the minutes of a grand jury simply for the purpose of preparing for trial; and that is particularly true in a case such as this wherein the prosecution does not rest directly upon an indictment found by the grand jury, but rather upon an information filed by the special state's attorney upon his oath of office. It is contended by some of the accused that the situation is somewhat different in this case from what it is in the ordh nary case because, they say, the grand jury, by filing a report such as it did file with the signatures of all of the grand jurors appended thereto, published abroad all of the secrets of its proceedings and thereby itself removed therefrom the veil of secrecy. The answer to that contention is that, by each one signing the report, the grand jurors did no more than waive the right which each one had to have kept secret his vote in the grand jury room. And, so far as the report itself is con' cerned, that did no more than make public the grand jury's conclusions of fact or rather, more accurately, its conclusion that there was probable ground to believe that those facts existed. The report did not make public the evidence upon which the conclusions of the grand jury were based. The making public of conclusions is quite a different thing from making public the evidence upon which those conclusions were based. The grand jury had no power or right to pub' lish the evidence even though it had attempted to do so. It had no power to waive the law of secrecy as to that evidence even though it had chosen to do so. It is the evidence taken before the grand jury that the accused desire to get at, not the grand jury's conclusions on that evidence, and there is no logic in claiming that the publication of the grand jury's conclusions in its report threw open the door to the evidence taken before the grand jury. For the foregoing reasons all of the motions to inspect the grand jury minutes are denied.

MUNGER, J. The decision of the case involves no step beyond the elementary principle that a plaintiff's recovery must be based upon the facts alleged. The relator has entirely failed to prove the essential allegations constituting the cause of action set forth in the complaint. He is not now a member of the .Bridgeport Fire Department, nor was he a member at the time the writ was issued. He was dismissed from the department for cause, after hearing, upon charges preferred against him. He took no appeal from this action, a right created by section 87 of the charter of the city, and makes no claim that there was any irregularity in the proceedings of dismissal. No such appeal, indeed, could be expected, since he appeared before the board of Fire Commissioners, pleaded guilty to the charges preferred and, according to the record, cast himself upon its mercy. Neither at the time the writ was issued nor at the time of his dismissal had he been retired. He had not even made application for retirement. Upon this point I cannot hesitate in accepting the definite testimony of Chief Burns. As pointed out by Judge Dickenson in a former memorandum, there can be no pension, or right to one, unless and until there has been a retirement pursuant to the power of the Board of Fire Commissioners given it by the city charter. The status of the relator at the time of his dismissal, instead of that of a fireman retired from duty, or who had applied for retirement, was that of a member of the department in active service, drawing full pay. It would hardly comport with human experience that he should seek retirement after his physical disability had been reported to the board, since he was assigned to duty no more arduous than acting as watchman in a fire house that had been abandoned. The case which the relator has attempted to present, as described in the complaint, is that of a member of the fire department, physically disabled, who, seeking the pension provided for, has applied for retirement and received no action by the board upon such application. In these proceedings therefore, he seeks a writ of mandamus, to the end that the board may be compelled to act upon the application. The facts in evidence do not support his contention. It is said that when the physical disability of the relator was known to the Board of Fire Commissioners it became its duty to retire him, even without an application. It is provided in the charter that, in case of physical disability, the board "may" retire. The relator says that this provision is mandatory, that "may" is to be taken as meaning "must", citing State ex rel. Foote vs. Bartholomew, 103 Conn. 607. It is unnecessary to argue the point to consider whether this is the correct construction of the language of the charter relating to the subject. The fact is that, after a report of the physical condition of the relator had been made to the board, he received something apparently far better than retirement—a classification of active duty which entitled him to full pay, but involved work of the lightest possible nature. The relator himself says that he experienced no difficulty in doing it. The relator made no complaint, nor, as before noted, could he be expected to have done so, until after his dismissal from the department. It only remains to repeat that no evidence supports the allegations of the complaint, and that there are no facts and no possible construction of the charter of the city in connection with them upon which the relief sought in these proceedings can be predicated. Judgment must be for the respondents.

Memorandum of decision on demurrer. O'SULLIVAN, J. The complaint is in three counts, to each of which, as well as to the prayer for relief, a demurrer has been addressed. The following allegations are common to all counts; the defendant operates a sanitarium in the Town of Westport for the treatment of persons suffering from mental -disorders. On June 17, 1939, Leo Perlstein, who was afflicted by suicidal impulses, entered the sanitarium as a patient. He was assigned to a room from which certain furnishings had not been removed. On the following day, making use of some of these articles, he hanged himself. About a year and ten months later, the plaintiff qualified as administratrix on liis estate. In addition to the foregoing, the following appears: In the first count it is alleged that Perlstein, acting through his wife, had entered into an agreement, with the defendant whereby the latter undertook, for compensation, to safeguard him and prevent his carrying out any insane desire for self-destruction, which agreement was breached; in the second count, it is alleged that the defendant's negligence in failing to keep Perl-.stein under proper supervision was the cause of his death; and in the third, that Perlstein was induced to become a patient by reason of certain representations made by the defendant to the effect that it was thoroughly equipped to insure his .safety from acts of his own violence and that these representations were false in fact and known to be so by the defendant. Thus, the plaintiff is seeking to recover damages for the death of her intestate on the theory of (1) breach of contract, (2) negligence, and (3) fraudulent representations. The demurrer to the first count is short and it will do no harm to spread it out so that we can see it. The defendant demurs, because: "1. The alleged cause of action is within the provisions of 1430e of the General Statutes [Supp. 1939] and was not brought within the time limited, namely one year from the neglect or fault complained of. "2. Said action is within the provisions of section 1680c of the General Statutes [Supp. 1935] and was not brought within one year from the date of the act or omission come plained of. "3. No action lies at common law for damages resulting from death due to breach of contract. "4. An action for damages resulting from death due to breach of contract does not survive. "5. It fails to state a cause of action." The fifth ground may be ignored because of its generality. As to the third and fourth, they allege legal principles out of harmony with those settled by a recent case which holds that an action for death due to a breach of contract survives and that damages for the death are recoverable. Giambozi vs. Peters, 127 Conn. 380. The cited case overruled, if Porpora vs. New Haven, 122 Conn. 80, had not already done so, the law as formerly stated in Burkhardt vs. Armour & Co., 115 Conn. 249. The Porpora case, which was the precursor of Giambozi vs. Peters, is an iconoclastic decision, destroying, as it does, a net' work of precedents, and leaving high, dry and stranded the legal philosophy underlying the purpose and effect of our sur' vival and death statutes, as enunciated so clearly in Kling vs. Torello, 87 Conn. 301. No legal principles have been more thoroughly accepted than that at common law (1) one's death, whether traceable to an actionable wrong or to natural causes, abates a pending action for personal injuries, or, if suit therefore has not been instituted, bars a representative from enforcing the right his decedent had possessed during life to recover damages from the wrongdoer, and that (2) the, destruction of human life is not an actionable injury. Broughel vs. Southern New England Telephone Co., 72 Conn. 617; Connecticut Mutual Life Ins. Co. vs. New York & New Haven R.R. Co., 25 id. 265. These rules, which not infrequently are thought of as a single, composite legal principle, are, in truth, separate and distinct and a failure to appreciate this fact may lead to con' fused thinking. Of course, the rules were too barbaric to re' main unchallenged by society. At least as far back as 1672, the Colony of Connecticut had provided for the recovery of the fixed sum of one hundred pounds for death due to a defec' tive highway or bridge. Laws of Connecticut, Compilation of 1672. This was in the nature of a penalty, requiring no sur' vival statute to enforce it. And obviously so, for the right of recovery was not a right the decedent had enjoyed. The statute created its own cause of action. The provision for this penalty remained in force until repealed by chapter 49 of the Public Acts of 1848. During the same session, but at. an earlier date, the General Assembly enacted the first survival statute concerning postmortem rights flowing from personal injuries. It read: "Sec. 1. . . No action to recover damages for injury to the person, reputation or property of the plaintiff, or to the person of his wife, child or servant, shall abate by reason of his death, but his executor or administrator may enter and prosecute the same, in the same manner as is now by law provided in regard to other actions. "Sec. 2. Actions for injury to the person, whether the same do or do not result in death, actions for injury to the reputa' tion, or actions for injury to the property, real or personal, and actions to recover damages for injury to the person of the wife, child or servant, of any deceased person, shall survive to his executor or administrator, provided the cause of action shall not have arisen more than one year before the death of the deceased. "Sec. 3. Nothing herein contained shall affect any action now pending, or be applicable to any cause of action now existing." (Pub. Acts [1848] chap. 5.) The foregoing statute, amended in phraseology from time to time, and sometimes segregated by itself and sometimes joined by a section incorporating the so'called death statute (notably Pub. Acts [1903]-chap. 193), has remained in force until today when it appears as section 1432e of the 1939 Sup' plement to the General Statutes. For three years after its passage in 1848, we had no death statute. In 1851, the Assembly passed an act providing that if any person should lose his life in consequence of the failure of a railroad company to cause a whistle to be blown or a bell sounded when a locomotive was approaching a grade crossing, the company should forfeit and pay $1,000 to designated persons. (Pub. Acts [1851] chap. 43, §2.) This statute continued in effect until 1875, when it was amended by striking out the specific sum, and by substituting a provision that a railroad company should pay all damages which might accrue to any person as a result of the failure of the engineer to give a warning by bell or whistle when nearing a grade crossing. (Gen. Stat. [1875] tit. 17, chap. 2, part 9, §73, p. 331.) In 1853, another act was passed providing that a railroad company should be liable to pay not less than $1,000 nor more than $5,000 to certain beneficiaries for negligently causing the death of a passenger or any other person. (Pub. Acts. [1853] chap. 74, §8.) Another act to which reference should be made, was passed in 1869, which provided for the recovery of damages, not to exceed $5,000, from a railroad company whose failure to fence its right of way caused death. (Pub. Acts [1869] chap. 48.) A summary of the various matters referred to above is this: So far as a respectable research discloses, there were four instances prior to 1877 when the Legislature passed acts which specifically mentioned money that might be recovered for death, either as damages or as a penalty. These instances were: (1) The statute of 1672, allowing a penalty of one hundred pounds for death resulting from a defective highway or bridge. (2) The act of 1851 (chap. 43), authorizing the forfeiture of $1,000 from a railroad company for death caused by the failure of those in charge of a locomotive to give a warning, by bell or whistle, of its approach to a grade crossing. (3) The act of 1853 (chap. 74), providing that a railroad company should be liable in damages for an amount not less than $1,000 nor more than $5,000 for negligently causing the death of a passenger or any other person. (4) The act of 1869 (chap. 48), providing that a railroad company should be liable in damages for an amount not in excess of $5,000 for the death of any person injured through the failure of the company to fence its right of way when on or adjacent to a highway. Item (1) was repealed in 1848; item (2), in 1875; and items (3) and (4), in 1877. (Pub. Acts [1877] chap. 78.) This last mentioned act, in addition to repealing the statutes referred to, provided that "in all actions by an executor or administrator for injuries resulting in death from negligence", just damages not exceeding $5,000 might be recovered from the party legally at fault. By this new enactment, the Assembly changed its tactics. It no longer singled out railroad com-' panics; the embrasive language of the act of'1877 brought within its scope everyone legally at fault because of negligent conduct. The Por pora case holds that an action for death resulting from the breach of a statutory duty is preserved by virtue of the survival statute, and, inferentially at least, that the same statute authorises a recovery of damages for the death. The latter conclusion is definitely reached in the Giambozi case. Fundamentally, each of these two cases called for a construction of statutes. The intention of the Legislature is the guide for such an effort and must be ascertained from the language itself if that is plain; but when it is doubtful, the true meaning is to be gathered by considering the act in the light of all its provisions, the object sought to be accomplished and the evil to be eliminated, pre-existing legislation upon the same subject and other relevant circumstances.' In applying this test, the Supreme Court found what it deemed to be the legislative intent, and in a sweeping decision,. annihilated many concepts of the law1 long entertained Jby the bar and, I am sure, by the trial bench. Although it takes me beyond the line necessary to rule on the demurrer, I venture to express what some of these concepts were. I begin by stating the conclusion that the survival statute is nothing more than what its name implies and does not effectuate any result other than to permit the representative to recover such damages as his decedent could have recovered, had he lived. In other words, it abolishes only the first of the two common-law rules stated some paragraphs back, leaving for additional legislative action the abolition of the second rule. This traditional view of the bar and trial bench was based on various grounds which may hot be inappropriately stated at this point. In the first* place, with the sole exception of the years between 1848 and 1851, there has always been in force in Connecticut, since at least 1672, one or more statutes com monly called death statutes. From 1672 until 1848, a matter of 176 years, recovery for death was extremely limited. In fact, it was not predicated upon a true death statute, as that expression is ordinarily understood, for the law provided merely for the recovery of a fixed penalty from those responsible for defective highways and bridges. No particular significance should be assigned to this statute save as it indicates that for a century and three-quarters but one situation could arise whereby a wrongdoer could be compelled to pay a definite sum of money to a beneficiary because of the occurrence of death. In the'second place, between the years 1848 and 1851, while the newly enacted survival statute was in operation but no death statute was on the books (the 1672 statute, it will be recalled, having been repealed in 1848), no cases are reported wherein representatives sought damages for death under the survival statute. It was not until the death statute of 1853 was passed that one finds cases of this sort. This may or may not be expressive. It may have been merely a coincidence. In the third place, the only death statutes enacted from the passage of the survival statute of 1848 until 1877 dealt with and affected railroad companies. This course of legislative conduct has always been deemed a cogent argument against such an interpretation of the intention of the General Assembly and of the effect of the survival statute as that adopted by the Porpora case. The years from 1840 to 1850 are widely known as those of the great railroad era. To that decade many of the large transportation systems trace their birth, an event not hailed with universal acclaim. Indeed, in the early days, the sailing was far from smooth. Considerable opposition, some of which was quite influential, sought to place innumerable obstacles in the path of growth. This attitude is reflected in some of the proceedings before the General Assembly. 4 Osborn, History of Connecticut, p. 478. As one runs through the pages of the public acts from 1840 on, he is bound to be impressed by the many acts devoted to this new creation of science. In chapter after chapter, they were told to do this and that and not to do that and this. I can recall no other subject of regulatory legislation that compares with the scope and constancy of that devoted to the railroads during this early period of their existence. If, as the Por pora case holds, the survival statute of 1848 or its amended descendant creates a. right to recover damages for death, and if the death statute is designed merely to segregate from all the rights brought into existence by the former, certain ones flowing out of special types of wrongs committed by specified classes of persons, a singular phenomenon would have occurred, in that between 1851 and 1877 only railroad companies would have enjoyed the limited liability of the death statute then in effect. In other words, if damages for death were allowable under the survival statute, the recoverable amount, in an action against any person other than a railroad company, would have been unrestricted, for the statute contained ño limitation. Against the background of the attitude of the Assembly towards railroads, the legislative intent found in the Porpora case would, it seems to me, have been an instance of Utopian unselfishness if that purpose was to grant only to railroads the advantage of a ceilinged liability. While the act of 1851 authorized the forfeiture by a railroad company of $1,000 for causing death due to a failure of those in charge of a locomotive to give a warning of its approach to a grade crossing, it was couched in language suggestive of a penalty. The first true death statute, that is, one allowing the assessment of damages for death, was that of 1853. It is worthy of note that this latter statute was enacted by the Legislature, which happened to be in session, within a month after the disastrous wrecking of a train which plunged through an open drawbridge at Norwalk on May 6, 1853, resulting in the deaths of many passengers. To the authority which holds that the 'survival statute allows damages for death, the only justification it can advance for the act of 1853 would appear to be that the legislative purpose was to secure the railroad companies against the unlimited amount of damages for death permitted by the survival statute, or, in other words, that the purpose was to protect the new industry. But is it not more reasonable to believe that the legislative objective was to add to the cause of action for ante mortem sufferings, saved by the .survival statute, a, newly created right to recover an additional .amount for the death itself? If the Assembly believed that from 1848 to 1853, the survival statute authorized the recovery •of damages for death, it would, it seems to me, be contrary to the human nature of every legislator to give his approval to a 'bill extending limited liability, in cases of death, for none-too-popular transportation companies, one of which had within the month caused the deaths of many at Norwalk, while permitting all others, including himself, to be subjected to unlimited liability for potential acts of negligence resulting in death. In the fourth place, the traditional concepts as to the law found support in many authorities, on which the Porpora case relies, but which on analysis would appear to be in direct conflict with its conclusions. The first case that is reported after the passage of the survival statute was Soule vs. New York & New Haven R.R. Co., 24 Conn. 575. The cause of action arose from events occurring before the passage of the act of 1853. The act of 1851 was in effect but it had no bearing on the case in as much as the accident was not due to the failure of an engineer to sound a warning. The Porpora case cites the Soule case, saying of it (p. 86) that "this court sustained an action against a railroad for a death due to its negligence which occurred in 1853, under the provisions of the act of 1848 {the survival statute}." With great .deference to the high authority from which this statement emanates, 1 can find no justification for it. The facts of the Soule case were these: A Mr. Gray, on whose estate Soule was acting as administrator, was one of those passengers whose death had occurred in the Norwalk disaster. This was the wreck, it will be recalled, that prompted the Assembly to pass the act of 1853. When the train plunged into the river Gray was not instantly killed, but, for two hours or more before dying, he remained severely "wounded, bruised and injured, and suffered great pain and anguish both of body and mind." The opinion, I submit, does not hold that an action against a railroad company to recover damages for death was maintainable. The case decided only these two points: (1) that, in the second paragraph of the act of 1848 reading "actions for injury to the person, whether the same do or do not result in death.... shall survive," the word "actions" includes causes of action as well as pending actions, and (2) that Gray's sufferings and the duration of them were appreciable, and-"though probably short, were intense beyond conception, and this is enough to maintain this action." The court expressly refrained from holding that damages for death should be allowed. As the Soule case was later interpreted, "the plaintiff was entitled to enter.... to prosecute it to a judgment which would be compensatory for all that the intestate {Gray}, while living, suffered as a consequence of the injuries inflicted." Kling vs. Torello, 87 Conn. 301, 303. (Italics added.) The Porpora case also cites Murphy vs. New York & New Haven R.R. Co., 30 Conn. 184, and states (p. 87) that it "came before this court and a recovery by the plaintiff against a railroad for death at a railroad crossing caused by negligence of its servants was sustained'... .but the significance of the decision to our inquiry lies in the fact that the action was apparently decided, not under the provisions of the railroad law, but under the general statute as to the survival of actions." Again, with great deference, may I not refer to what the Murphy case seems to me to have decided. The single question raised was whether a cause of action.was alleged. The defendant urged that there was none because, - as the action was case, consequential damages were essential to support it, and such damages were not pleaded, as the decedent suffered instant death. Thus the question was a technical question of pleading. In analyzing the merit of the defendant's claim, the court referred to the survival statute but did so in order to determine whether any injury resulting in instantaneous death fell within its provisions. The conclusion was in the affirmative on the ground that the decedent's right to personal security had been violated, thereby creating in him a cause of action which survived, the death being the source of the consequential damages. While the death statute of 1853 was not mentioned, it must be remembered that it had been in force seven years prior to the accident giving rise to the Murphy case. And this leads me to suggest that from 1848 until after 1877 there are no reported cases of administrators seeking to recover damages for death from any person other than a railroad company. It indeed would be a striking coincidence if, during that period of 29 years, there was not at least one action brought against some wrongdoer other than a railroad company, if the bar of those days, which undoubtedly included many members of the Assembly that had passed the act of 1848, believed that damages for death were recoverable by virtue of the survival statute. But the case which more than any other established our law as to the purpose and effect of both the survival and death statutes was Kling vs. Torello, 87 Conn. 301. "The right of action which the executor or administrator is permitted to pursue is not one which springs from the death. It is one which comes to the representative by survival. . .The survival statute operates to transfer to the representative the right of action which the deceased had for his sufferings and disability during life, while the death enlarges his right of recovery by permitting an award of additional damages for the death itself as one of the harmful results of the wrongful act. The court is by the statute, as it was not by the common law, authorized to take that event into consideration." (p. 305.) The Torello case has heretofore been accepted as authority for the propositions that the survival statute repeals the commondaw rule that abates pending actions for personal injuries and prevents the instituting of those not already brought, while the death statute allows damages for death in those cases, and in only those which fall within its provisions. This follows the law as stated in Goodsell vs. Hartford & New Haven R.R. Co., 33 Conn. 51, 55, wherein, in speaking of the survival statute, the court said: "In 1848 it was enacted that a suit for injury to the person, whether the same do or do not result in death, shall survive to his executor or administrator. . . .If he dies, the same cause of action, that is, for the same damages, survives to his executor or administrator." Likewise in Budd vs. Meriden Electric R.R. Co., 69 Conn. 272, 284, the court noted the great expansion of the law, stating that "the main difference between the section last named, and the statute of 1853, is that the law as it now exists [in 1897] is not limited to injuries inflicted by a railroad company, but includes all injuries resulting in death." Finally, to many it will seem that to hold that the survival statute permits a recovery for death offends against reason. For example, if, prior to the amendment of the death statute in 1937 to which reference later shall be made, a passenger on a railroad had been killed as the result of the carrier's negli' gence, his administrator could not have recovered over $10,000 if he brought an action grounded in negligence, while on the same set of facts, but on a different theory, namely, that of breach of contract, his recovery could have been unlimited. Or, if in the Bur\hardt case, the action for death under the implied warranty was within the survival statute, as the Porpora case would have it, and if the person who died was of great affluence, unlimited damages could have been assessed against the innocent shopkeeper who sold the corned beef, while the liability of the manufacturer, the one truly at fault, would have been limited to $10,000, because, as against it, the action would fall within the death statute. And if suit had not been brought within a year, as provided by the death statute, the latter, who of the two defendants ought to be held liable, would entirely escape while the former could still have been subjected to the possibility of suit for at least three years. These traditional concepts on which I have commented can be epitomised by saying that the survival statute was intended to save rights but not to create them and that damages for death should be allowed only in those instances permitted by the Legislature. This finds support in (1) the history of the enactment of the statutes; (2) the absence of any reported cases seeking damages for death between 1848 and 1851 when no death statute was in force; (3) the absence of any such cases between 1851 and 1877 except those against railroads; (4) the intention of the Legislature as it may reasonably be gleaned; (5) the interpretation by the court from the Soule case on, concerning the purpose and effect of the statutes; and (6) reason. But these concepts must now be discarded and though unconvinced of its soundness, I shall, of course, be guided by the Porpora case. And now as I pause to read over what I have so far written, I am appalled, first, at my own temerity, secondly, at the length to which this memorandum has already gone, and finally, in contemplating what one may think of the Porpora and Giambozi cases is quite immaterial to the question presented by the demurrer. After all, those cases are the law. But in as much as I have taken the time to transcribe my thoughts to writing, I may as well allow them to remain, let us say, as a prophesy of the overruling of the cases, which sooner or later will occur. The real problem in the instant case is to determine whether the present death statute (Supp. [1939] §1430e) includes actions for breach of contract resulting in death. If it does, the first ground of the demurrer is good; otherwise, bad. The death statute in effect when the cause of action alleged in the first count arose reads as follows: "Actions for injuries resulting in death. In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages not exceeding fifteen thousand dollars, provided no action shall be brought to recover such damages but within one year from the neglect or fault complained of." This act, which was passed by the Assembly in 1937, amended section 5987 of the General Statutes which reads: "Actions for injuries resulting in death; damages. In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, for whether caused by the negligence of the defendant or by his wilfuj, malicious or felonious act] such executor or administrator may recover from the party legally at fault for such injuries just damages not exceeding ten thousand dollars, provided no action shall be brought under this section but within one year from the neglect complained of or from the commission of such wilful, malicious or felonious act. All damages recovered under this section shall be distributed as directed in section 4983." The amendment of 1937 was undoubtedly inspired, at least in major part, by the Porpora decision, which had been handed down during the preceding October. Shaker vs. Shaker, 9 Conn. Sup. 182, 186. It must be remembered that section 5987 had been in force without change since 1913, and yet within a few months after the Porpora case was decided, and at the earliest opportunity for so doing, the Assembly amended the section to its present form. The italicized language covers the phraseological changes, while the words within brackets are those eliminated by the amendment. If, then, it was prompted to act by the Porpora case, it is reasonable to believe that the Legislature was aware of the conclusions found in the following excerpt (p. 95): "It may be that the scope of §5987....is to be limited now to the causes of action specified in it.... Whether or not an action for death due to a highway defect falls within §5987, it in any event survives by reason of the provision of §6030 {the survival statute}.... In so far as the decision in Burkhardt vs. Armour & Co.....is opposed to this conclusion, it must be overruled." The significant part of this excerpt that must have been in the legislative mind is that (1) actions under the statute for failure to maintain a sufficient fence on the side of a bridge are maintainable under the survival statute, and (2) the Bwr\' hardt case was disapproved, in part. This latter case (115 Conn. 249) had held, so far as is pertinent to this inquiry, that damages for the death were properly excluded from the recovery allowed against the defendant Tea Company for the breach of implied warranty. The deletions from section 5987 are of vital significance. In the first place they throw under the control of section 1430e "any action.... for injuries resulting in death" as long as it is an action that survives. This is very broad language whose extent is indicated by the addition of the words "or/ fault", found in the amendment after the word "neglect," Ordinarily fault is synonymous with neglect. But it should not be deemed so under the circumstances, for so to hold would attribute to the Assembly the wasted effort of adding a useless alternative, not at all essential to carry out its intent. As employed in the amendment, "fault" means a failure to do that which ought to have been done, or the doing of that which should not have been done; a wrongful act or default; a dereliction of duty. Webster's Dict. When a statute is amended and re-enacted in amended form, the presumption is that this was done in the light of the judicial construction that the prior enactment had received by the court of last resort of- the State. Stamford vs. Stamford, 107 Conn. 596, 606. When changes have been introduced by amendment it is not to be assumed that they are without design. 2 Lewis' Sutherland on Statutory Construction (2d ed.) §401, 403. Considering that the Porpora case was responsible for the amendment of 1937, and the phraseology used by the Assembly, I hold that section 1430e is now broad enough to include actions based on breach of contract resulting in death, as well as those grounded in tort. In view of this ruling, the defendant has the right to raise by demurrer the question of the tardiness of the action, rather than by pleading it in its answer. The year's limitation of time within which suit must be brought is a condition of the right and not a limitation on the remedy. Hartford and Connecticut Western R.R. Co. vs. Montague, 72 Conn. 687, 692; Radezky vs. Sargent & Co., 77 id. 110, 114: Korb vs. Bridgeport Gas Light Co., 91 id. 395, 397. The first ground is sound and requires the sustaining of the demurrer to the first count. This conclusion makes unnecessary a discussion of the second ground. The second count is based on negligence. As damages for death due to negligence is governed, as it always has been since 1853, by the death statute, the limitation of the time therein provided must control. That limitation is one year, "from the neglect complained of." As more than a year elapsed between the neglect and the institution of the action, the statute applies. The demurrer to the second count is sustained on the first ground alleged. The third count is based on fraudulent representations. Such a cause of action is now governed by the embrasive language of section 1430e, as indicated by the comments made heretofore when discussing the effect of the amendment of 1937. The demurrer to this count is sustained on the first ground. The defendant has likewise demurred to the prayer for relief which seeks $50,000 damages. As all of the causes of action are governed by the provisions of section 143Oe, the limitation of $15,000 must control. The demurrer to the prayer for relief is sustained. One final word. In their briefs, both parties have taken the position that the damages which are sought are those to be assessed for Perlstein's death. It is conceivable that, so far as the first and third counts are concerned, the court might refuse to sustain the demurrer to these counts, if damages of .an ante mortem source had been pleaded and urged.

CORNELL, J. The judgment which the plaintiff would have opened was entered upon the sustaining of a plea to the jurisdiction on June 17, 1938. Since it resulted in a dismissal of the cause alleged against the defendant, The Armand Co., it is final as to that party. Norton vs. Shore Line Ry. Co., 84 Conn. 24, 31, and cases cited in the opinion. Such being the case, the Court lost control over it after the expiration of the term at which it was rendered. Conn. Mortgage & Title Guaranty Co. vs. DiFrancesco, 112 Conn. 673, 674; Potter vs. Prudential Ins. Co., 108 id. 271, 282. It then became and remains inviolate unless, in a proper proceeding it is set aside for reasons cognisable in equity. Among the latter grounds is that alleged here, vis., mistake of fact, if "unmixed with negligence upon the part of the aggrieved party or his attorney." Jarvis vs. Martin, 77 Conn. 19, 21. It may be that in the situation disclosed at the hearing on the instant motion the parties may stipulate that the judgment be opened, thus to save the necessity of further proceedings and additional expense. In case such a situation should eventuate, while the procedure would be irregular, the Court would then feel justified in granting a motion to open. Simpson vs. Y.M.C.A. of Bridgeport, 118 Conn. 414, 417. The instant motion for the reasons noted, is denied.

FOSTER, J. The plaintiff institutes this action on account of injuries received by reason of a defective condition of a. sidewalk, a part of a public highway in the City of New Haven, caused by snow and ice. The City of New Haven- and the adjoining property owners are made defendants. The defendant City of New Haven demurs to the complaint on the grounds: (1) that there is no allegation in the complaint that the sidewalk was under the control, maintenance or care of the city; (2) that there is no allegation in the complaint that the city owed a duty to the plaintiff to-keep the sidewalk free and clear of ice and snow; (3) that the City of New Haven is saved from any such liability by Special Act of the Legislature. The allegations of the complaint are sufficiently broad and comprehensive to sustain the action, if the city had control and care of the sidewalk in question, and if the city did owe a duty to the plaintiff to keep the sidewalk free and clear of ice and snow. We, therefore, address ourselves to the question as to whether the city had any such control and duty as to render it liable upon the allegations of the complaint. It is well settled by numerous decisions that any right of action that the plaintiff may have against the City of New Haven is not a right of action by common law but is purely statutory. Such right of action is provided in section 1420 of the General Statutes, Revision of 1930. The City of New Haven cannot be held liable for its neglect of duty, unless such neglect was the sole proximate cause of the plaintiff's injury. Matchulot vs. Ansonia, 116 Conn. 55. In the complaint we have allegations of liability of both the City of New Haven and the adjoining property owners. In 1937 the Legislature passed an Act providing in part: "No action claiming damage to person or property . . . shall be maintained against the City of New Haven for defective sidewalks caused by snow and ice. The duty of keeping sidewalks in said city free from snow and ice shall be upon the adjoining property owner, and, for any injuries sustained as a result of a breach of this duty, the owner shall be liable in damages to the person or persons so injured." Special Acts of 1937, p. 982. At common law no action existed against either the city or the property owners, because there existed no duty, the breach of which would furnish a basis for such action. In section 1420 of the General Statutes, Revision of 1930, the Legislature created the duty of the city and provided as a penalty for the breach of such duty liability to the injured party for damages. In 1937 (using the words of Willoughby vs. New Haven, 123 Conn. 446, 452) the Legislature by apt words cast upon the property owner the primary duty of keeping the sidewalk reasonably safe, or remedying a defect, such as a dangerous condition caused by snow and ice, for the crea tion of which they were not responsible. "Where the intent is to transfer liability from the municipality to another, there is no difficulty in expressing it in unmistakable terms, as was done, for example, in the statutes now sections 1420 and 3755 of the General Statutes and in the Special Act, to which reference is above made." id 453. Such a "delimiting the existing statutory action for injury from snow and ice on a sidewalk" is recognized in Wladyka vs. Waterbury, 98 Conn. 305. It, therefore, follows that by statutory provision, expressed in plain unmistakable words, the plaintiff has not set forth in the complaint a good cause of action against the City of New Haven. The demurrer of the City of New Haven to the complaint is sustained on the third ground thereof.

CORNELL, J. The first count seeks to predicate liability under the statute on defendant's part for failure to adequately light a rear porch of a tenement house which forms part of a common passageway connected by stairs leading from the third floor to the ground. The statute in question (Gen. Stat. [1930] §2566) provides that: "The owner of each tenement house shall provide for the lighting of all public halls at night." Section 2562 defines a "public hall" as that term is employed in section 2566, supra, as meaning, • "a hall, corridor or passageway not within an apartment." It thus fails to limit the application of the term to means of passing within a tenement building, but extends it to all passageways which are for the common use of tenants or others lawfully upon them. Such all-embracing language would seem to be inclusive of exterior as well as interior passageways and so it cannot be held that the plaintiff may not be .able to establish a cause of action within the allegations of the first count. Demurrer overruled on both grounds.

Memorandum of decision in action for wrongful death. QUINLAN, J. A statement of the facts of this case is most essential, not only for a determination of the case, but to an understanding of the claims made by the respective parties. The action was brought originally by the estate of one James G. Shaker against his son, George Shaker, for damages for the deceased's death arising from the alleged negligent operation of an automobile operated by the son George, of which his father was an occupant. James Shaker resided in Bethel with his family, over a vegetable and fruit market which he conducted. The members of the Shaker family were the father and mother, a daughter, Josephine (made a defendant after the sustaining of a demurrer filed by George), her sister, Emily, and George. The father was 66 years of age and never operated an automobile and possessed no license. Josephine, her sister and George did possess such licenses. After the father had established his business at Bethel it prospered and the defendant, Josephine, thought she would get her father a little truck to use in the business. She had some money from some insurance and with other of her savings purchased a panel body Ford truck. This truck was registered in Josephine's name, and on the trial she claimed to own it. The father paid for repairs of the car, bought the gasoline for it and insurance premiums were paid out of store funds. The car was used in the business to go back and forth for vegetables and once in a while for deliveries, and the said truck had the name "Bethel Fruit and Vegetable Market'' painted on the outside. On such occasions George, and sometimes his sisters, drove the truck. George was 18 years old and was supported by the father along with the rest of the family. On July 8, 1939, the truck was engaged in a trip to Waterbury to obtain vegetables. It was used for this purpose as much as three times a week. As it was proceeding down the concrete paved hill from Newtown to Sandy Hook, it left the road and came in contact with a tree, the father sustaining injuries from which he died. From these facts the following claims are made: 1. That the son, George, is liable. 2. That if he is not, his sister, Josephine, is the responsible party under the family car doctrine. 3. That the son's negligence is not imputable to his father The defendant takes issue with all these claims. They will be discussed in order. I and III. On the trial, on the theory that the court might not feel impelled to follow the decision on the demurrer by the court (King, J.), certain statements made by George to a State Police officer were received in evidence, as binding upon George only. I am of the opinion now, as I 'was of the impression at the time of trial, that the decision on the demurrer was sound, and the law good, henqe no judgment would run against George, an unemancipated minor son, by his-father's estate. (See memorandum on demurrer, 9 Conn. Sup. 182). Consequently, the evidence concerning the admissions has not been considered in passing upon the question, of negligence. The road, at the point of accident, was 36 feet 2 inches, wide and there were no shoulders. It was on a down grade. The car had mounted the curb 47 feet prior to the impact with the tree and there were two wheel marks leading from the mark on the curb to the tree. The whole front of the car was damaged, as shown in the exhibits, and there was-no evidence of other traffic on the road. The operator did. not have the car under proper control. Notwithstanding, there must exist some legal basis for charging the defendant, Josephine Shaker, whq married a man named Choker. So far as the business in hand was concerned, the boy was his-father's agent, under his control, and legally his acts are chargeable to the father, so the boy's negligence would be imputable to the father. II. Under the -facts it is claimed that the boy was his sister's agent under the family car doctrine. It is conceivable that he could be the agent of both his father and his sister. Both parties, in their briefs, argued at length the applicability of the family car doctrine. It Would appear, however,, that the real troublesome question was overlooked in the effort to demonstrate that the family car doctrine either should or should not apply. I find no difficulty in finding the car to be a family car for the purposes of the business. Simply because it was owned by a sister instead of the head -of the family would not be controlling. While it was used in the father's business, it was done with Josephine's permission. In such a situation the controlling element is the scope of the intended use of the car, rather than- the mere fact that it is owned and maintained by any particular person. Durso vs. A. D. Cozzolino, Inc., 128 Conn. 24, 30. Moreover, in that very case our court specifically fails to distinguish between the identity of the ownership as long as the use is a family one, and uses this language: "But if a car is maintained for the general use of a family, we see no valid distinction between a situation where it is owned and maintained by a member of the family and one where, as here, it is owned and maintained by a family corporation for the use of the family of its managing head and one of the principal stockholders." (Italics added.) Durso vs. A. D. Cozzolino, Inc., supra, p. 30. And again, in the same case, our court said (p. 30): "The reason underlying the doctrine exists no less in such a situation than in one where title to 'the car is in a member of the family." CONCLUSIONS. The real difficulty seems to be that the son's negligence, even though an agent of his sister, might be imputable to the father under that doctrine. Most of the cases arise from the necessity of a third-party plaintiff asserting the doctrine to recover. So far as plaintiff is concerned such a necessity was felt. But is such a plaintiff's position satisfactorily advantaged even after establishing that the car was a family car? I think not. In its facts the case comes close to possessing the elements essential to a joint enterprise which "include at least a common purpose, a community, of interest in the object of the enterprise, joint possession of the vehicle, and equal right and authority to control its operation." Weller vs. Fish Transport Co., Inc., 123 Conn. 49, 54. Apart from joint enterprise the car was bought by the sister, Josephine, to be operated by the members of the family, under the control of the father, for the father's business, conducted for the benefit of the family, living together as an entity. One of the uses for which it was intended was just such a use as it was being put to when the father lost his life. A third-party occupant of the car could have sued the father and the daughter, in a similar situation, and the son's, negligence would bring into being the responding factor ere ating liability as to father and daughter. If the son's negligence. would accomplish liability as to a third party why is not the son's negligence imputable to the father as against the sister? As to the sister there could be no liability were the car not engaged in the father's business as a family use car in the business. The relationship of the parties, the use which made it a family car, and the particular business in which the father was on that day engaged, all point to' the conclusion that the boy's negligence should be imputed to the father. ' A reference to the family car doctrine seems to support such a conclusion. "It is generally accepted as a necessary rule of public policy and social justice. . .But theoretically as well as practically, the master's responsibility for the negligence of his servant extends far beyond his actual or possible control over the conduct of the servant. It rests on the broader ground that every man who prefers to manage his affairs through others, remains bound to so manage them that third persons are not injured by any breach of legal duty on the part of such others while they are engaged upon his business and within the scope of their authority." (Italics added.) Wolf vs. Sulik, 93 Conn. 431, 436. See, also, Stickney vs. Epstein, 100 id. 170, 177, 178. The case at bar seems to be distinguishable from the case of Weller vs. Fish Transport Co., Inc., supra, and Nichols vs. Nichols, 126 Conn. 614. Certainly if the rule is based on "public policy and social justice" and extensions, of the rule of respondeat superior may be desirable as new situations arise, such an extension as is sought here would bring about a defeat of justice, or at least allow a perversion of the doctrine to accomplish a result which extensions of the respondeat superior rule by means of the family car doctrine were not intended to aid. Judgment for the defendants.

WYNNE, J. The accused is before the Court on a bench warrant issued upon motion of the State's Attorney. The information to which he is called upon to answer is that set forth in a presentment, or an accusation by the Grand Jury. In legal effect the State's Attorney has adopted the information as his own. The warrant served upon the accused is "to answer the foregoing information by the State Prosecuting Attorney." To regard the Grand Jury's accusation as an indictment in a truly technical sense, and proceed to a critical analysis of its legality will avail nothing at this time. If the motion to quash were to be granted, there would be nothing to prevent the State's Attorney from proceeding upon original information. Nor would there be anything gained if this Court now should make extensive comments regarding the historical development of the Grand Jury and its modem adaptation to new problems of social import. That the Grand Jury as an instrument has been adjusted deliberately to changing conditions is clearly apparent. We need only to take as beacons after a century of fixed adherence to ancient principle, the extension first by Mr. Justice Maltbie, to be followed by Justice Brown's charge in the Watkins case; and then the present views of Judge Inglis and Judge Foster. The only significance that can be attached to the action of the General Assembly in rejecting on three occasions, proposals that State's Attorneys be permitted in Grand Jury sessions, is in the fact that the change was sought in connection with those cases where indictments are constitutional safeguards. If this were a case where a Grand Jury's presentment was a necessary formal safeguard and prerequisite to prosecution, the Court would be bound to consider principles which it feels are not controlling now. All that is involved here is the question as to whether the State, acting through the Superior Court, has the power to use a Grand Jury as a device to probe and to make inquiry. The Court is satisfied that the State has such power and that our Courts can be depended upon to retain it for use and not abuse. No claim is made that the Grand Jury did not scrupulously follow the directions of Judge Foster, and with those directions this Court is in entire accord by every dictate of modern governmental philosophy.. Exception is taken to the manner in which the Grand Jury was selected. Under the statute, however, it is much more logical for the Judge to do it than for the Sheriff, whatever may have been the permissive practice of the past. It might well be, as frequently recommended, that a definite method regarding this be adopted by the Legislature, but for the present and under the existing statute, the instant method appears entirely legal. Regarding the contention of the accused that the facts alleged constitute no violation of common law or statute, this Court cannot agree. It requires no violence of construction to bring them within the logic, the reasoning and the ethical conclusions of Mr. Justice Hinman in the case of State vs. Parker, 114 Conn. 354. The point about "waiver of immunity" is academic only. It is subordinate to the limits of the power herein recognised; and lacking a basis of legislative definition, the claim must be dismissed. Regarding the technical questions raised bearing upon the Statute of Limitations, the Court is satisfied that if there is a conspiracy legally alleged, it is that offense alone which offers the measure of attack. There is therefore nothing alleged, either in the broad aspect of the problem or in technical infirmity or defect, to call for action now. The motion to quash as amended is denied.

Memorandum of decision on motion for specific statement. KING, J. This is an action for the foreclosure of a second mortgage in the original principal amount of $7,200. As a special defense, the defendant Sonia Litin, the present owner of the equity of redemption, has alleged, in effect, that in 1937 she entered into an agreement of amortisation with the plaintiff which she has complied with and which is still in force and effect. The plaintiff, in this motion, seeks to compel the defendant to make her special defense more specific by stating (1) the exact terms of the agreement, (2) the date it was entered into, (3) the parties to it and (4) whether it was oral or written; and, if written, by incorporating a copy thereof in the special defense of the answer. It is apparent that if the agreement was in writing, it would speak for itself and would itself furnish the best evidence of most, if not all, of the matters as to which more specific information is sought. Under these circumstances, the plaintiff should have made a motion for oyer under the provisions of section 124 on page 51 of the Practice Book (1934). While this disposes of the motion for a more specific state ment, it might be noted, in passing, that if, as indicated in the oral argument of the present motion for more specific statement, the defendant is unable to furnish a copy of such an agreement because the agreement itself is in the possession of the plaintiff or her attorney, a motion for its production for inspection under the provisions of section 76 on page 39 of the Practice Book (1934) might furnish an appropriate remedy. The motion for -a more specific statement is denied.

O'SULLIVAN, J. This action has been brought agreeable to the provisions of section 270a of the Public Acts of 1931 (Cum. Sup. [1935] §530c) by which an affected person may appeal to the Superior Court from the act of the Highway Commissioner in reestablishing lost or uncertain boundary lines or limits of a state aid or trunk line highway. The appellant owns a tract of land in the town of Preston on the southerly side of the Norwich'Westerly road. On May 31, 1932, the Highway Commissioner notified the appellant that he had reestablished the bounds of the road as it passed by her property. The Commissioner had determined the bounds to be as follows: beginning at a concrete stone bound set on or near the easterly line of Indian Town Road; thence northwesterly in a straight line about 474.0 feet to a point about 12 feet easterly from the range of the westerly side of the appellant's house; thence northwesterly in a straight line about 181.9 feet to a point; thence westerly in a straight line about 44.25 feet to a concrete stone bound set in the center of a wide ditch; thence southwesterly in a straight line about 9.78 feet to a concrete stone bound in the center of said ditch. The foregoing lines and courses appear in detail upon a blue' print appropriately prepared by the Commissioner and by him filed with the proper persons, a copy of which print appears in evidence as Exhibit "A". The cause of this course of con' duct by the Commissioner was his claim, which in this appeal the appellant disputes, that the bounds of the road have be' come lost or uncertain. There are four methods of establishing a highway in the State of Connecticut: 1. Through direct action by the Legislature." 2. Through authorized proceedings involving an application to a court (Gen. Stat. [1930] §1450). 3. Through authorized proceedings by agents appointed for that purpose, such as selectmen. .of towns (§1433), specified officials of municipalities (§1435) and the Highway Commissioner (§1473). 4. Through private dedication of land and its accept' anee by the public. Makepeace, et ux. vs. Waterbury, 74 Conn. 360. The Norwich'Westerly road, at least at the locus of this controversy, was established through the fourth method. Hence, the problem is simply this: how much of Mrs. Pendle' ton's land was dedicated for highway purposes by her prede' cessors in title and how much thereof was accepted by the unorganised public? That question is answered and the extent of the dedication and acceptance determined by the conduct, including acts and declarations, of the dedicating owner and of the general unorganised public. Russo vs. Seleit, 98 Conn. 398. The Commissioner's reestablishment was not predicated upon any declarations of the dedicator, nor upon any map or plan to evidence the extent of the dedication, such as was avail' able in Levine vs. West Haven, 120 Conn. 207. However, the former existence of an old stone wall at the northeast corner of the appellant's property, the course of which was carried along by a series of old trees, is ample proof that these were built or planted to denote the bound of that por' tion of the land intended for dedication as a highway. A stone wall is strong evidence of a boundary line. Roberti vs. Atwater, 43 Conn. 540, 546. Equally impressive for a sim' ilar purpose is the presence of a line of trees. Many years ago the Legislature offered a bounty for the planting and care of certain types of trees along a highway. Public Acts of 1881, chap. 102. The interest of the State in encouraging this practice has been apparent ever since that time. Bounties were continued and their amount was increased until the duty of setting out shade trees was placed upon public officials, at which time the bounty law was repealed. Public Acts of 1929, chap. 76. The spaces between the trees on or near the appellant's land are all within the sixtyToot limit required by statute as a condition necessary for a bounty. It is reasonable to believe that the trees in question were planted along that line which the owner intended to mark as the bound of his dedication and for which he could qualify as the recipient of a bounty. Wadsworth vs. Middletown, 94 Conn. 435, 438. The other requirement for the establishment of the high' way is that the dedicated land be accepted by the unorganized public. The appellant's position is that only the wrought por' tion of the road has been so accepted. She further maintains that her acts of ownership over that area between the trees and the traveled portion, such as the mowing of the grass upon such area, preclude the public from obtaining the right to pass and repass over it. Save where title has actually passed to the State or a sub' division thereof—a situation not here present—a highway is nothing but an easement, comprehending merely the right of the public to travel upon it. Peck vs. Smith, 1 Conn. 103, 132. Every person whose land abuts on a highway is the owner in fee of the soil to the middle of the highway, subject to the easement enjoyed by the public to pass over it, and on his side of the middle line he may do anything which an owner in fee may do, if it does not interfere with that easement. Thus, he may grade the surface of the highway, erect hitching posts or plant shade trees. Fitch vs. New York P. & B. R.R. Co., 59 Conn. 414, 420. In like manner he may mow the grass that borders the wrought part of the road, but all of these acts of ownership are subject to the superior right of the public to pass with reasonable safety over the soil burdened by the ease' ment. The Norwich'Westerly road is typical of many which wind through the entire State, where the highway consists of a wrought portion with bordering areas of grass or bushes. In view of the location and character of the road, it is not to be expected that the public authorities would work its full width or the public use it to that extent. The use made of it was such as might be expected under the circumstances, and the fact that there was little if any use of the portion between the wrought part and the trees does not require a conclusion that the road had not been accepted by the public as dedicated by the owner. Levine vs. West Haven, supra, p. 210. The case of Russo vs. Seleit, supra, relied on by the appeb lant, is not in point, inasmuch as the present case is concerned with an accurately defined strip of land dedicated for highway purposes. Accordingly the appeal is dismissed.

INGLIS, J. The claim of the plaintiff is that, on October 26, 1934, at about 8:00 a.m., while walking in a southerly direction on the east side of Niagara Street in Waterbury she caught the heel of her right shoe between the east edge of .a sewer box located near the center of the sidewalk and the sidewalk itself in front of premises owned by the defendant 'Miller, and fell, injuring herself severely. It appears that the surface of the sewer box at the place where the plaintiff caught her heel is only one-quarter of an inch below the surface of the sidewalk and that the sidewalk is beveled down over a distance of three'quarters of an inch to meet the level of the surface of the sewer box. The condition of the sewer box and sidewalk was not dan' gerous but was reasonably safe for travel. It was not the condition of the sewer box or sidewalk as constructed which caused the plaintiff's fall but rather the fact that the sidewalk was covered by wet, slippery leaves which had come onto the sidewalk and become wet during the preceding night. It is therefore concluded, both because the City had not failed to exercise reasonable care to keep the sidewalk reason' ably safe and also because the condition in the sidewalk of which the plaintiff complains was not the cause of her fall, that the City is not liable in this action. It appears that the defendant Miller was the person responsible for the maintenance of the sewer box in the sidewalk. The City has cited her in as being the party primarily liable and, of course, it is true that if the presence of the sewer box in the sidewalk did render the sidewalk unsafe it would be the defendant Miller who would be primarily liable. Waterbury vs. Clark, 91 Conn. 254; Charter of Waterbury, §154, 249. The plaintiff makes no claim against the defendant Miller and it is alleged and admitted in the pleadings that in consid' eration of $402.00 the plaintiff has released the defendant Miller from all liability for the injuries for which she is suing to recover in this action. Inasmuch as the City is not to be called upon to pay dam' ages in this action no judgment should be rendered against the defendant Miller. The City has not set up in its answer, as a spe ;ial defense, that the plaintiff has released the person primarily liable from liability. For that reason, as well as for the reason that the facts do not indicate liability upon either the City or Miller, it is not proper to pass upon the claim made by the City in argument that the release of the defendant Miller operated as a release of the City. Judgment may enter on the complaint in favor of the de' fendant City that it recover of the plaintiff its taxable costs and on the somalled cross'petition in favor of the defendant Miller that she recover her taxable costs of the defendant the City of Waterbury.

ELLS, J. Complete separation amounting to legal desertion has continued for more than the statutory period of three years; reconciliation cannot occur; one of the parties to the action is entitled to a divorce. Each one claims desertion by the other. Each one wants custody of the child. The question as to which one did the deserting is unusually -close. The wife left her husband. She claims she was forced out by his conduct, and that he ordered her to leave. He claims his treatment was at all times exemplary, and denies 'he told her to get out. The evidence discloses she left him and the child; that instead of going to her parents' home next door she went to .'Poughkeepsie with the aid of a male friend; and that he visited her frequently there. There is sufficient in her subsequent conduct to indicate that the desertion was by her, and without ¡sufficient justification, and I so find. The real problem has to do with the custody of the nine- year-old boy. He is now with her parents. They are worthy people and do the best they can, but there is a disturbing and distressing element in the household which I refrain from discussing. The father (this defendant), maintains a fine home, but is away at work all day. The house is in charge of a woman cousin who is an entire stranger to the boy. This is a decisive factor. The mother will give up her work and establish a home in Danbury for the child. Under all these circumstances, she is the proper person from the viewpoint of the child's welfare. The father is in all respects a proper person to have the complete custody. He is apparently a good man, very industrious and of excellent character. He is devoted to the child. But the boy needs a mother's care, for the present at least. She is therefore awarded custody, with the right of the father to the custody and control each Sunday from nine in the morning until nine in the evening, and the right to visit the child at reasonable times during the week. This is far from a good solution. It seems to be the best one available. All we can do is to try it out and see how it works. The welfare of the child is paramount. If this plan does not succeed, a new one will be tried. The husband is to pay five dollars a week toward the support of the child. The wife is not entitled to alimony.

SIMPSON, J. This is a proceeding to require Cecil P. Caulkins, as secretary of the American Ordnance Corporation, a Delaware corporation having its principal office and place of business in New London, to transfer certain shares of stock to the relator. This demurrer to the alternative writ of mandamus raises the question whether a writ of mandamus will lie to require the performance of such an act. This question was directly decided in the negative in the case of Tobey vs. Hakes, 54 Conn. 274, wherein it was held that a writ of mandamus would not issue to compel the secre' tary of a private corporation to allow a stockholder to transfer his stock on the books of the corporation and to issue a certifi' cate therefor. This was upon the theory that a writ of man' damus never lies to compel the execution of a private right or a right resting upon private contract. The relator claims that the Tobey case should be overruled and has in effect been overruled by the case of Bassett vs. Atwater, 65 Conn. 355, decided some eight or nine years sub' sequent to the Tobey case. The Bassett case was an application for the issuance of a writ of mandamus to require the president and secretary of a corporation to call a special meeting of the stockholders of the corporation. A petition had been presented to the president and secretary to call the special meeting by the required num ber of stockholders, and was in every way in compliance with the by-laws of the corporation. A statute also provided the manner in which special meetings of private corporations should be called. A careful reading of this case discloses that the Court, among other things, held that the petitioners had no other adequate remedy at law, and that when the proper number of stockholders petitioned the president and secretary in a form prescribed by the statute it became the imperative duty of the president and secretary to give the prescribed notice for calling the meeting. These considerations differentiate the Bassett case from the Tobey case. In the Tobey case as well as in the instant case, there was and is an adequate remedy at law or equity, and moreover there is no statute involved making it the duty of the secretary to transfer the stock. It is interesting to note that the Tobey case was decided by Andrews, J., as Judge of the Superior Court, and that the decision in the Bassett case was written by Andrews as Chief Justice of the Supreme Court. The Tobey case was cited by counsel for the respondents in the Bassett case and it is reasonable to suppose that if Andrews as Chief Justice intended or thought he was overruling or modifying Andrews of the Superior Court, he would have made some comment upon that fact. As the law in this State is to be determined by the Tobey case, the demurrer must be sustained. Moreover this is in accordance with the weight of authority. 3 L.R.A. 265 (Note); 48 L.R.A. (N.S.) 847, 848 (Note); 13 Am. Jur. Corporations, §371; Stackpole vs. Seymour, 127 Mass. 104. The demurrer is sustained.

Memorandum of decision on motion to erase from docket. MUNGER, J. The return shows service of the writ upon the defendant by leaving a copy at his usual place of abode in this State. At the time he was not an inhabitant or resident of this State but. was a resident of Florida. The motion to erase, however, must be denied because it is not the proper proceeding. "A motion to erase the case from the docket will only be granted when it clearly appears from the record that the court is without jurisdiction." Reilly vs. Pepe Co., 108 Conn. 436, 443. Of course this is not saying that the defendant is not without remedy, but as it does not appear upon the face of the record that the court is without a jurisdiction and because in fact its want of jurisdiction is based on facts outside the record, the motion as above stated to erase the case from the docket must be denied upon the authority of the Reilly case cited.

INGLIS, J. The question as to whether an accused should be .allowed to inspect documents which are in the custody of the state's attorney (whether they have come there through grand jury proceedings or otherwise), although it may at first blush seem to be similar to the question as to his right to inspect grand jury minutes, is in reality fundamentally different. The record of the testimony before the grand jury is not evidence admissible on the trial of the accused to prove the truth of facts testified to. Documents and records in the possession of the state's attorney are, or at least may be, admissible as evidence on the trial. Accordingly, an accused is not apt to be faced on the trial with the grand jury minutes, unless indeed it be a transcript of his own testimony before the grand jury and that he has full knowledge of anyway, but he is apt to be faced with documents, records and other physical evidence which the state's attorney has in his possession. Very often documents and records need careful analysis in order to ascertain their true significance and there is no time to make that analysis during a trial. Moreover, the fundamental reason for the rule denying the right to inspect grand jury minutes in preparation for trial is that it permits successful tampering with witnesses to the end that their testimony may be changed or colored. That reason does not obtain with reference to written or printed evidence. Mere inspection of written or printed documents can not result in those documents being altered. Wigmore on Evidence (2nd ed., 1923), volume 3, section 1859g, with reference to criminal procedure, says: "At common law, no right of inspection of documents before trial was conceeded to the accused... .considerations of fairness (however) . . . call also for conceding the opportunity of inspection of documents; the danger of an unscrupulous tampering with documents, and the possibility of manufacturing a refutation, are here far less than for witnesses . . . Thus far, however, this just concession has been made in only a few jurisdictions." The reason why at common law inspection of documents was denied is ably explained by Cardozo, Ch. J., in Peo. ex rel. Lemon vs. Supreme Court, 245 N.Y. 24, 156 N.E. 84. He points out that discovery a.nd disclosure as we know it in civil procedure is only either equitable or statutory procedure, and therefore, was not recognised in the common law courts in the early days. He goes on to say (p. 29): "When we turn to criminal causes, we find a jurisdiction that is even more restricted. There are expressions of opinion that deny the jurisdiction altogether. There are others that seem to limit the disclosure to documents that are the subject of the charge. . . . Others concede or assume a broader jurisdiction, one adequate to prevent a failure to justice, yet narrower than discovery in equity or under the statutory substitute." Certainly the modern trend of authorities in this country is to hold that it is discretionary with the Court in a criminal case to allow an inspection of documents or other articles in the possession of the state's attorney and that that discretion ought to be exercised in favor of the accused when the documents sought are the very subject of the charge and admissible in evidence, and it is necessary for a fair presentation of the case on trial that the accused inspect them in advance of the trial. Massie vs. Peo. (Colo.), 258 Pac. 226; State vs. Colson (Mo.), 30 S.W. (2d) 59; Peo. vs. Miller, 257 N.Y. 54, 177 N.E. 306; State vs. DiNoi (R.I.), 195 Atl. 497. The policy of the law of Connecticut on the subject was laid down in 1887 in Daly vs. Dimock, 55 Conn. 579. That was a mandamus proceeding brought by one accused of murder to compel the clerk of the Court to permit the accused to inspect the testimony taken before the coroner, which testimony in accordance with the statute had been filed with the clerk. At page ?89 the Court says: "The argument that the writ ought not to be granted because it is the indicted party who asks for it, is not a very weighty one. The law presumes every man to be innocent until the contrary appears; and its policy is to give every man accused of crime a reasonable opportunity to prepare and present to a jury his defense. The state does not desire to procure convictions by any unfair concealment or surprise. It concerns itself quite as much in having the innocent acquitted as in having the guilty convicted. While it affords every reasonable facility for the prosecution of offenders, it is no less solicitous to give to every accused person a fair and reasonable opportunity to make his defense." The Court pointing out the fact that under the statute the transcript of the testimony before the coroner was a public record, directed the Superior Court to order the clerk to permit the accused person to inspect it. From this, it is clear that it is the policy of our law to open to the inspection of a person accused of crime at least such documents as are public records if such inspection is reasonably necessary for an adequate preparation of the accused's defense. In this case, except that in some instances an accused asks leave to inspect his own books and papers taken from him in the grand jury proceedings, which request obviously should be granted, the only documents or records which are specifically referred to in the motions as being the objects of the inspection sought are the records .of the City of Waterbury. These are public records. Except for the fact that they had been impounded as evidence they would have been open to the inspection of any person who had a personal and legal interest therein. (Note) 27 L.R.A. 82; (Note) 60 A.L.R. 1356. They, therefore, come squarely within the group of documents which Daly vs. Dimock, supra, holds should be open to the inspection of an accused. Here also we are not faced with the difficulty with which the old common law courts were faced, namely, the contention that the courts not having equitable jurisdiction had no power to order the prosecutor to permit an inspection of articles in his possession. In the present case all of the documents and records in question were in. evidence as exhibits before the grand jury, which was an arm of the Court. When the grand jury made its report the Court ordered the exhibits turned over to the special state's attorney "subject to the order of the Court." They are now, therefore, impounded with the special state's attorney, subject to the Court's order and control. It is to be noted that the information charges that one of the unlawful methods used by the conspirators, in pursuance of the conspiracy, to accomplish the alleged purpose of defrauding the City of Waterbury, was the manipulation of the checks, records and books of the city. Accordingly, these checks, records and books are of the very subject matter of the charge against these accused. For that reason in any jurisdiction which permits inspection at all they are just the sort of things, inspection of which would be granted. That it is necessary for the accused in the adequate preparation of their defense to inspect these documents and records is apparent. It is apparent from the information and the grand jury's report that on the trial they are going to be faced with these documents and the contention made that these documents and records tend to prove that the city's funds have been improperly used and that the documents and records themselves have been so manipulated as to conceal that improper use. It would obviously be unfair to the accused to expect them on the spur of the moment on the trial to meet the inferences which the State will claim are to be drawn from these documents without having had an opportunity to inspect them in advance. A fair administration of justice, therefore, demands that the Court exercise its discretion at least to the extent of ordering an inspection of such of the documents and records of the City of Waterbury as the accused have asked in these motions. The prayers contained in the various motions of the respective accused are so different from each other that the motions must be passed upon separately or at least in groups, and that will now be done. The accused Olsen moves for permission to view the checks claimed to have been paid to him. In so far as such checks now in the possession of the state's attorney came from the records of the City of Waterbury, the motion is granted. The accused Fleming, Crary, Shanahan, Slavin, Minor and Johnston in their motion for inspection of minutes of the grand jury (6 Conn. Sup. 230) incidentally move for permission to inspect the exhibits given by them respectively to the grand jury. That portion of their motion is granted. The accused O'Connor's motion to view checks, i.e., the checks claimed to have been paid to him, is granted in so far as those checks formed a part of the records of the City of Waterbury. He has also moved to inspect the vouchers and checks and papers designated "Request for Reimbursement of Petty Cash Fund" and similar documentary evidence, and that motion is granted. The motions of Philip Coppeto and Ralph Coppeto "For Inspection And Examination Of Records And Etc." are granted. These accused also move for the return of bank checks, papers and documents belonging to them respectively and those motions are denied. The statutory motion for disclosure and discovery applies only in civil cases and as such is not known to criminal procedure. The motions of these two defendants so entitled are denied. The motions of Santalucia and Healey for permission to-view the checks claimed to have been paid to each of them respectively are granted. Their motions for a return to them respectively of the books and records taken from them are denied. The accused Alderman in his "Application To Inspect And Examine The Transcript Of The Testimony Given Before The Grand Jury" incidentally prays permission to examine "the books, papers, documents and records introduced before and examined by said body." That application is too vague in its reference to books and papers to be granted in general terms. Upon the application, therefore, it is ordered that he be permitted to inspect such books, papers, documents and records as are or were a part of the records of the City of Waterbury and are now in the possession of the special state's attorney. The motion of the accused Pietraroria to view the checks-claimed to have been paid to him is granted. In connection with the motion of the defendants, Kingsley,, Murray and Meany, for an inspection of the grand jury minutes, those defendants ask permission to inspect "a large volume of documents represented by records of the City of Waterbury and of annual audits and reports made by the accounting firm with which these defendants are connected." Upon that motion, it is ordered that these accused may inspect such documents as the special state's attorney has in his possession which are records of the City of Waterbury and the-annual audits and reports referred to if they came from the custody of the city. Where an inspection is ordered herein, it may be made by the accused upon whose application it has been ordered and', by his attorney and by any certified public accountant who represents him or any of them. It shall be had at such reasonable time and place as shall be designated by the special state's attorney and after reasonable notice of the time and' place given by the special state's attorney to the respective-attorneys for the accused by mail. At such inspection, the-accused or his representatives may make copies of any of the documents or records which under this order they are entitled' to inspect respectively. The inspection shall be made in the-presence of a representative of the state's attorney if he desires-to have such a representative present. Each accused and his- representatives shall be given access to the documents and records which he is entitled to inspect under this order for such a period of time as is reasonably necessary to permit full inspection and copying of said records and documents and the whole inspection shall be subject to such further order of the court as may be entered to accomplish justice or to secure a speedy trial of the case.

CORNELL, J. The report is accepted. The only question is whether the defendant commission acted arbitrarily and hence illegally in refusing a package store permit to plaintiff because he is an unsuitable person by reason of his "record." It appears that while the so-called "Prohibition Amendment" was in effect the plaintiff either pleaded, or was found, guilty, of violating "the existing law" on two occasions, vis., April 8, 1922 and May 8, 1926. The "existing law" mentioned is palpably that in effect at the time of the convictions referred to and not that now in force. This court cannot say that there is at least no reasonable ground for a fair difference of opinion whether the plaintiff's record of convictions does not render him an unsuitable person to enjoy the privileges of the permit which he now seeks. In the first of these he was fined $200 and this did not deter him from pursuing conduct which four years later impliedly merited a fine of $400 and a jail sentence of thirty days, execution of which latter was suspended. If the commission drew the inference from these occurrences that the plaintiff had shown a certain degree of contempt for the law and might reasonably be expected to do so again if entrusted with a permit, the court cannot say that it acted arbitrarily in so doing. While the situation disclosed more closely approaches the borderline between what may be viewed as a fair and reasonable exercise of the commission's discretion and an arbitrary use of its powers, it is not perceived that the commission has overstepped these limits. Judgment for the appellee dismissing the appeal.

DICKENSON, J. There is evidence that the Frigidaire was operated by a motor and had a control by which the cold could be regulated, that the control lever was out of order and shifted overnight, freezing the food. The plaintiff's claim was that this and the fact that the motor ran at long intervals with few intervals of rest between would account for an overheating of the motor and setting fire to the floor under or about the Frigidaire, and taken in connection with testimony that the Frigidaire itself was afire, fire was all about it and there was no other apparent cause for the fire, justified the jury in its conclusion. The defendant offered evidence that the Frigidaire was of steel construction and could not get afire; that various checks, prevented the motor from overheating and that had it overheated it could not have created heat that would cause the fire. Where it appears the jury must have given credence to evidence "which is irreconcilable with, for example, the laws of' mechanics" in order to arrive at their verdict it should be set aside. Anderson vs. Colucci, 119 Conn. 241, 245. The evidence in the instant case is indeed irreconcilable with the laws. of mechanics if the facts as given by the defendant's experts are accepted as indisputable. But-the jury obviously refused to accept them as such and the question is therefore one of fact that may not be disturbed by this Court. The motion is denied.

DICKENSON, J. Paragraph six of the complaint sets up a dangerous condition in a highway arising out of grade, character of the pavement and proximity of railroad tracks that existed to the knowledge of the defendant town and was "allowed" by it to exist without guarding it with lights, signals, a fence or other safeguards, and thus "allowing" a nuisance to exist. This defendant's second defense is that in maintaining this highway it was performing a governmental duty. The plaintiff demurs to this defense for the reason that the cause of action against the defendant town "is one predicated upon maintenance.... of a nuisance" to which the defense of governmental immunity may not be raised. While the plaintiff has characterised its allegation as one setting up nuisance and the defendant has taken him at his word, a consideration of the facts sets up in paragraph six of the complaint shows that it is no more than a claim of breach of statutory duty of the town under section 1420 of the General Statutes, Revision of 1930, and perhaps section 1419. It is not alleged that the defendant town created a nuisance and the claim that it maintained one, or "allowed" one to exist, has no greater force than a charge of breach of statutory duty. Parker vs. Hartford, 122 Conn. 500, 505. The trouble with the demurrer, however, is that the second defense does not set up governmental immunity even though that may have been the intention. It no more than states in effect that it maintains those streets in a governmental capacity. It contains the only express admission in the defense of paragraph three of the complaint that the highway in question was under the control of the defendant town although by failure to deny this allegation it presumably admits it. In short, the pleadings are not so framed that the Court may pass upon the question which the parties raised in argument and for that reason the demurrer is overruled.

Memorandum of decision on appeal from assessment of unemployment compensation contribution. KING, J. The plaintiff corporation operates a beauty par' lor in Waterbury employing ten or more employees. In re' porting wages paid for the period covered by the appeal, under our Unemployment Compensation Act, the plaintiff re' ported only the payroll wages actually paid by it to its mployccs, exclusive of tips which they received from patrons. The defendant's investigator finally visited the plaintiff's establishment, then for the first time discovered that it was so operated that employees received tips in substantial amounts, and the defendant filed a deficiency assessment covering these tips from which this plaintiff now appeals. From so much of this deficiency assessment as covers a $4,000 officers' salary item the appeal has been abandoned, leaving as the sole ques' tion to be determined the validity of that part of the deficiency assessment involving -the employees' tips. The plaintiff has attacked our Act in many ways, but on many points his argument is concerned principally with policy, and should therefore be addressed to the Legislature rathei than to the judiciary. Section 1334e(b) of the 1939 Supplement to the General Statutes provides that " 'Wages' shall mean all remuneration for employment. . . .Whenever gratuities are received by an individual in the course of his employment from persons other than his employer, the average of such gratuities shall be estimated and determined in accordance with regulations pre' scribed by the administrator {defendant}, and the amount so determined shall, for the purpose of the contributions required and the benefits provided for under this chapter, be included as a part of the wages of such individual." No reason is perceived why the General Assembly should not have concluded that actual payroll wages are often low in the service employments where tipping is customary, and that this is because both parties to the contract of employment contemplate that the tips will amount to enough to make the aggregate compensation a satisfactory one, and that the actual quid pro quo which the employee is to receive for the effort expended is satisfactory to him only because of the income supplied by tips. Bryant vs. Pullman Co., 188 App. Div. 311, 177 N.Y.S. 488, affirmed on other grounds in 228 N.Y. 579, 127 N.E. 909; Thibeault vs. General Outdoor Advertising Co., Inc., 114 Conn. 410, 412. The Federal Act did not require all state acts to be stereotyped copies of one another, nor prevent constructive social experimentation not inconsistent with the minimum requirements as to state legislation laid down in the Federal Act. Steward Machine Co. vs. Davis, 301 U.S. 548, 593, 81 L. ed. 1279, 1294. The plaintiff lays great stress on the wording of section 1336e(a) of the 1939 Supplement to the General Statutes, providing that "Each employer.... shall pay.... contributions . (of a certain- percentage) of the wages payable by him." Its claim is that this rules out "tips" because .they are paid by persons other than the employer. In the first place tips are not '"payable." "Payable" properly refers to a contractual obligation which would not include tips. Tips may be paid but are never payable. Secondly, tips are not wages, in any ordinary sense of the word, and are made such only by reason of the provisions of the Act previously quoted. Not only is there no inconsistency between the two portions of the Act, but the legislative will to include "tips" as wages is made abundantly clear, if any clarification were needed. The importance of our section 1334e(b), above quoted, is brought out in Alex. Hamilton Hotel Corp. vs. Board of Review, 127 N.J.L. 184, 21 Atl. (2d) 739, construing the New Jersey Act, which had no similar provision. The plaintiff's claim that the General Assembly did not intend to have tips included as a part of the wages earned is without merit. Sections 1336e and 1345e(f) require each employer subject to the Act (as this plaintiff admittedly was) to file periodic reports upon, which are calculated the amounts of contributions due under the Act, and, with section 1347e(a), penalise the filing of an incorrect report or the failure to file any report at all. It it obvious that the plaintiff knowingly filed' a report which was incorrect in that , it made no mention whatever of tips, although the plaintiff's officers admittedly knew that such tips were being received by its employees in substantial amounts. The precise amount of the tips may have been, as claimed by the plaintiff, unknown to it. If this was so, it was due, as far as appears, solely to the plaintiff's failure to take the trouble to inform itself. It did not appear at the hearing that any effort had been made by the plaintiff to ascertain, from the employees affected, or any of them, the amount of these tips by them respectively received. It is- important to bear this fact in mind in considering the further claims made by this plaintiff, since it was obviously impractical, and probably impossible, for it to ascertain the amount of these tips by any sort of surveillance or supervision, or in fact in any way other than by inquiry of its employees. The plaintiff ascribes this lack of knowledge (profitable to it until detected by the defendant's investigator), to a regulation of the defendant which it claimed prevented it from obtaining this information. The regulation referred to is Regulation 11, made by the defendant in order, as he claims, to carry out the provisions of section 1334e(b), previously quoted, and reads as follows: "REGULATION 11. METHOD OF ESTIMATING GRATUITIES. "The value of gratuities received by an individual in the course of his employment from persons other than his employer may be estimated by an agreement between the employer and the employee which must be filed with the Administrator, or may be arrived at in such other equitable manner as may appear most feasible to the reporting employer, provided that employees shall not be required to disclose the amount actually received, and that a filed statement indicate the method by which amounts reported are ascertained. The Administrator may approve amounts so reported, or may, after investigation, substitute other amounts which shall thereafter, until further notice, be used in determining the basis of contribution. "While the value of such gratuities must be added to other wages for the purpose of computing the contributions payable under the Connecticut Unemployment Compensation Act, employers should note that, according to a ruling of the Federal Bureau of Internal Revenue (XV-28-8176 S.S.T. 12), such gratuities need not be added to other wages for the purpose of computing the amount of the federal excise tax." The particular portion attacked is the phrase "provided that employees shall not be required to disclose the amount [of tips] actually received." The plaintiff construes the word "required" as equiyalent to the word "asked" or "requested", and claims it was forbidden by the regulation to use the only method open to it of making a report covering these tips, and that therefore it could not report them at all and that after" this lapse of time no one can ascertain what they were with sufficient accuracy to make them available for inclusion in the amount of wages earned. From this it draws the conclusion that no tax whatever can be levied against it on these tips, and that the defendant's attempt so to do must fall for lack of factual support. The natural meaning of "required" as used in the regulation is substantially equivalent to that of the word "forced" or "compelled." The fair meaning of the proviso is that an employer cannot use any threat of discharge or other form of compulsion to induce an employee to tell what tips he has received. So construed, it imposes no impediment to an employer's requesting (as distinguished from compelling or forcing a disclosure of) such information from his employees, nor to their imparting it to him. No claim was made that the defendant had ever placed any different interpretation on it, nor that the plaintiff had sought assistance from the defendant as to the proper interpretation of the regulation, as to what interpretation the defendant had actually given it, or as to any 'difficulties encountered by the plaintiff in carrying out its obligations under the Act. by reason of the proviso in the regulation. The actual course of conduct followed by the defendant's field investigator was in accordance with the interpretation put upon the regulation in this opinion, since he ascertained the estimate of the tips as made by the employees and checked it with the defendant's treasurer. Thus the defendant was informed as to the employees' claims as to the amount of their tips. The only way in which the "average" of the gratuities could be determined and reported by the employer as contemplated by the Act was by ascertaining what they were and averaging them over a reasonable period. In other words, the statute requires a report of these receipts from tips. There is nothing new in this, and in similar connections such reports of contributions have been used in the-computation of actual earnings. Williams vs. Jacksonville Terminal Co., 315 U.S. 386. While the use of the word "estimated" in the above quoted section of the Act is not a happy one, it is obvious that what is meant is that the average of gratuities must be computed by the administrator. (§1336e(b).) Under settled rules of law, controlling in this jurisdiction, even though no restrictive language appears in the Act, "the authority of the administrative body acting under such grant of power, is limited to the making of reasonable rules and regulations within the scope of the power granted.... [and} must be confined to details for regulating the mode of proceeding to carry into effect the law as it has been enacted, and it cannot be extended to amending or adding to the requirements of the statute itself." Loglisci vs. Liquor Control Commission, 123 Conn. 31, 37. Necessarily this would preclude the adoption of a regulation which would prevent the carrying out of the provisions of the Act. Under this rule of law, the defendant could prescribe reasonable methods of computing the average of such gratuities (see §1336e[b}) but he could not, of course, merely guess at them, and a construction of a taxing statute, such as this of course is, leaving the amount of the tax subject to the whim of the administrator would be wholly inadmissible and would prove a fatal blow to the constitutionality of the Act in its application to businesses where gratuities were involved. The administrator was authorised to prescribe reasonable periods over which the average should be taken, reasonable sources of information from which the amounts of contributions could be ascertained, and similar provisions of like nature. H. Duys & Co., Inc. vs. Tone, 125 Conn. 300, 312. The attack on Regulation 11 is directed against the proviso against "requiring" employees to give information. No claim is or could be made here that the defendant sought to force the plaintiff to agree to an unreasonable figure nor is any other part of Regulation 11 involved. The validity of the balance of Regulation 11 is not put in issue in this case. While it is possible to conceive of reasons which might have prompted the defendant to promulgate the above quoted proviso in this regulation (such as a feeling that a knowledge, on the part of the employer, of the amount of a particular employee's tips might tend to a reduction of his payroll wage), yet such reasons, however laudable, cannot justify such an arbitrary destruction of the power in an employer to carry out properly the provisions of the Act as to reports of gratuities or leave him helpless as to a factual background for an intelligent determination of "the average of such gratuities" for taxing purposes. It is hardly open to argument that the proviso in Regulation 11, in so far as it attempts to prevent an employer from requiring his employees to disclose the amount of tips received from his customers, is entirely outside any possible requirement of the law, is directly contrary to the whole intent and spirit of the law, and is void as arbitrary, unreasonable and an abuse of discretion. However, the mere fact that part of a statute or regulation is void does not help the plaintiff unless it was injured by it. State vs. Sinchuk, 96 Conn. 605, 615. In the instant case there is no evidence that this plaintiff ever requested any employee to give information as to the amount of his tips, nor that any such request, if made, would not have been granted. Had such a request been made and refused, and the plaintiff reported its -dilemma (created by Regulation 11) to the defendant, and the defendant th¿n insisted on suppressing the evidence essential to the proper computation of the plaintiff's tax liability under the Act through the medium of the above quoted proviso of Regulation 11, an entirely different question would have been before the court. The objectionable part of Regulation 11 was no impediment to' the plaintiff's compliance with the law, and therefore its invalidity is of no advantage to this plaintiff. Its rights were not invaded by it. 11 Am. Jur. Constitutional Law §111; State vs. Sinchuk, supra. This also disposes of the plaintiff's complaint that the de-fendant was remiss in not sooner levying the deficiency assessment. The defendant had no knowledge of the plaintiff's' fraudulent returns prior to' the .investigation of its establishment, and certainly the plaintiff is in no position to complain because its-fraud was not sooner detected. Furthermore the tax involved, with the interest, on the only contested part of the deficiency assessment, is trivial in amount, and the plaintiff cannot reasonably claim that its collection at this time would be productive of financial embarrassment. The plaintiff also claims that the assessment is illegal be cause rendered without any evidence. On the contrary, the plaintiff furnished no evidence, and the evidence was not contradicted that the estimate of the tips was concurred in by both the plaintiff's manager and the employees. As far as appears, no one has any knowledge that the allowance for tips was incorrect or unreasonable as an average. The plaintiff was under a duty to make accurate returns. In the absence of any impediment to the performance of its duty arising from the void provision in Regulation 11 (and as pointed out there was none in this case) no reason appears why this plaintiff failed to submit an accurate return as to tips. When it not only failed to do this, but left out all reference to tips at all (the plaintiff, at the trial, having expressly and unequivocally waived all rights to the 20 days' written notice provided by section 1345e[f}), the defendant was authorised to make the assessment "on the basis of such information as he may be able to obtain", and it appears that he did so. The plaintiff claims that over all this period of time tips fluctuated, both in the aggregate and with respect to individual personnel, and that some of these employees interrogated were not shown to have been working at the plaintiff's establishment during the earlier part of the period covered by the assessment appealed from. These difficulties were, as already pointed out, of the plaintiff's own making. For all that the defendant could know the plaintiff's report either included tips, or, if it did not, then none were permitted in its establishment. When a personal investigation finally brought to light the fact that the plaintiff's reports were, to its knowledge, false and fraudulent, the defendant appears to have acted on the best information obtainable. The plaintiff's further claim, that inquiry of employees would not be feasible because they would presumably all give false answers anyway from motives of self-interest, is an attack on workers in the service trades unworthy of being dignified by a reply. The plaintiff has not shown that the estimate given by its officer and accepted by the defendant was unreasonable, inaccurate, or, when confirmed by inquiry of at least four different operatives, not the best information obtainable. Indeed the plaintiff has not submitted any evidence from which the court could find any other figure. The plaintiff has not shown that the action of the de fendant was unreasonable, arbitrary or in abuse of his power or discretion. Beaverdale Memorial Park, Inc. vs. Danaher, 127 Conn. 175, 182. The plaintiff has abandoned all complaint of that part of .the assessment covering the $4,000 salary item. Judgment may enter denying and dismissing the appeal and confirming the assessment as made by the defendant, in toto.

McEVOY, J. In this action the plaintiff seeks to recover damages from the defendant, an owner of land abutting a sidewalk in the City of New Haven, because the plaintiff slipped, fell and was injured by reason of the failure of the defendant owner to "keep the sidewalk free of ice and snow or to otherwise make the sidewalk reasonably safe for use of persons lawfully there by spreading sand, ashes, cinders, gravel or other abrasive material there." The complaint is based upon the last paragraph of section 1 and the whole of section 2, as amended in Special Acts of 1937, No. 576. In the last paragraph of section 1 it is provided that: "No action claiming damage to person or property under said sections shall be maintained against the city of New Haven for defective sidewalks caused by snow and ice." The present section 2 of this act is the amended section 3 of the 1935 Special Act and provides as follows: "The duty of keeping sidewalks in said city free from snow and ice shall be upon the adjoining property owner and, for any injuries sustained as a result of a breach of this duty, the owner shall be liable in damages to the person or persons so injured. The person or persons so injured by reason of 'the breach of duty on the part of the property owner to keep such sidewalk free from snow and ice shall give written notice to the property owner of such injury and a general description of the same and the cause thereof and the time and place of its occurrence, within ten days thereafter." In paragraph 7 of the complaint it is alleged that the defendant, her agents, servants and employees were negligent in that she or they failed to keep the sidewalk free of ice and snow or to otherwise make the sidewalk reasonably safe for the use of persons lawfully thereon by spreading sand, ashes, cinders, gravel or other abrasive materials thereon. It should be observed that, while section 1 of said Special Act No. 576 places the duty of keeping the sidewalks free from snow and ice upon the "adjoining" property owner, yet the complaint makes no reference to the "adjoining" property owner but refers to the defendant as the owner of premises "in front." Counsel have apparently treated this allegation as synony' mous with "adjoining" and that point is not raised by the de' murrer so that it will not be discussed. The demurrer contains two paragraphs. The first is, sub' stantially, that the complaint does not allege that the defend' ant caused the dangerous and defective condition, nor that the defendant placed or caused to be placed on the sidewalk the snow and ice, nor that the defendant caused the slippery, urn even or defective, dangerous condition. The second paragraph attacks the constitutionality of the section upon which the plaintiff counts for three reasons: (1) That it is in violation of Article First of the Constitution of the State of Connecticut and particularly sections 1 and 12 there' of; and (2) That it is in violation of the Fourteenth Amendment to the Constitution of the United States; and (3) That it is unreasonable, arbitrary, discriminatory and void. In her brief the defendant cites City of New London vs. Miller, 60 Conn. 112, 116, as authority for the claim that "the sovereign power invoked by statute and ordinances levying assessments for the construction and maintenance of highways and streets is a taxing power." At page 116 of that case our Supreme Court said that: "Taxes are the regular, uniform and equal contributions which all citizens are required to make for the support of the govern' ment. An assessment for benefits may lack each of these qualities and yet be valid. . . . It is . . . uniform only in A at it is supposed to give an added value to the property of each person assessed to the full amount of the assessment. But it has one requirement in common with every kind of taxation—that the assessment must be made against the very person whose property is benefited." This definition would seem to remove this private act from the category of either a tax or an assessment, because it d-es not purport to benefit the property which is affected bv Ae attempted statutory imposition of liability. In 1881, in City of Hartford vs. Talcott, 48 Conn. 525, our Supreme Court carefully considered the question as to whether or not the imposition of a statutory penalty for failure to comply with an ordinance requiring either the removal of snow and ice or preventitive steps guarding injury due to its presence might be considered as conferring a'right of action on persons' injured by reason of the failure of the abutting owner to comply with the statutory requirements. It is important to observe that in that case the action was brought upon an ordinance and that the ordinance prohibited the owner of a lot adjoining the street from allowing ice to remain on the sidewalk uncovered by sand or other suitable substance. It was further provided that "the owner or owners . . of any building or lot of land bordering on any street . . . shall cause to be removed therefrom any and all snow, sleet and ice, within two hours after the same shall have fallen . or within three hours after sunrise, when the same shall have fallen in the night season." In another section of that ordinance a penalty was imposed for failure to remove snow and ice "for the space of one hour during the day time." In that case a traveler upon the highway, who was injured, brought an action against the city and recovered damages and then the city brought an action against the property owner for the amount which it was required to pay and claimed that, by reason of the enactment of the ordinance, upon the statutory authority to do so, the city was absolved from liability to any person injured and that liability was transferred to the property owner. At page 532 of that case our Supreme Court said: "As both the carriage and foot-ways are for the convenience of the public and not for the especial use or benefit of adjoining proprietors under the general law, the money expended in maintaining, and in making compensation for injuries resulting from neglect to maintain them, is to be paid by the public from taxes assessed equally upon all property. The ownership of land upon a way does not carry with it the burden of .an unequal contribution to either branch of these expenditures. The individual owes no duty to the public in reference to the way except to remove therefrom all property of Ids own which obstructs it, and to refrain from doing or plac ing anything thereon dangerous to the traveler. So far as defects in it result wholly from the operations of nature, the proprietor at whose front they exist is without responsibility for them. Therefore, where ice has accumulated upon the sidewalk to a dangerous extent it is the duty of the municipality to remove or cover it within a reasonable time after its formation." And further, at page 533: "But there is in this language no grant of power to the council to change the general law and transfer the responsibility for injuries resulting from defects in the way from the public to an individual who is not responsible for their existence. The utmost reach of it is only to authorise the enactment of an ordinance requiring each proprietor upon the way to assist the city in restoring the walk to a condition of safety, with a fixed and reasonable penalty for disobedience." And at page 534: "But, by passing this ordinance the city has not relieved itself from responsibility for the safety of travelers; it remains answerable for injuries resulting either from the negligence of the individual or its own omission to act. . . . Moreover, there not being upon the individual any liability at common law for injuries resulting from obstructions in the way wholly the effects of natural causes, such liability is not brought into existence by force of declarations in the ordinance that the obstructions are nuisances, or that it is his duty to remove them; for, as the liability is the creation of the ordinance, it can be no greater than that specifically named therein; and as, in the one before us, the council measured it by a fine with cost of removal, the city has thereby barred itself from enforcing an unnamed and unlimited liability beyond. In the matter of statutory penalties the expression of a certainty prevents the existence of an uncertainty." In that case it was held that the owner of property "bordering" sidewalks was not responsible in damages to the person injured by reason of the existence of snow and ice upon that sidewalk, but that the liability inhered in and remained upon the city. In State vs. Carpenter, 60 Conn. 97, at page 104, our Supreme Court said: "There must be a limitation somewhere, either in the statute authorising the ordinance, or in the charter, or in the ordinance itself, and if in the last the courts will determine whether the amount is reasonable or not. But if fixed in either of these ways and found reasonable in amount if will be valid." In Stevens vs. Neligon, 116 Conn. 307, a traveler upon a highway brought an action against a property owner claiming damages by reason of the failure of the defendant to remove the snow and ice from the sidewalk or otherwise make it safe for transportation. The action was, apparently, based upon the provisions of a special act affecting the City of Meriden, which provided that "any person who shall cause any defect in or place or cause to be placed any obstruction on any of the streets of the city of Meriden" shall be answerable for any damages resulting from such action. A demurrer was filed to the complaint and it was sustained. In that case the complaint alleged that the sidewalk was defective in that the flagstones upon it were not even, one being raised above the other, and also that the walk contained a structural defect "rendering it more dangerous by reason of the accumulation of snow and ice." The demurrer alleged substantially that the complaint did not allege that the sidewalk was under the jurisdiction of the defendant or under his control and that it was the primary duty of the city to keep it reasonably safe for travel and that this duty could not be delegated to or imposed upon the defendant owner. At page 309 of that case our Supreme Court said: "The State places upon the municipality the burden of keeping its highways in a reasonable safe condition for public travel, and this duty it cannot impose upon the property owner by contract or ordinance." And further, at pages 309, 310: "When the abutting property owner has not by his own act created a condition upon the highway dangerous to the traveler, he is not responsible where, by reason of the failure of the city to perform its duty, it has become unsafe for public travel." The complaint, in that case, specifically alleged that: "The plaintiff's fall was due either, on the one hand, to structural defects or improper construction of the walk by order of the city or because the city allowed it to remain in a defective condition, or, on the other hand, to the failure of the defendant Neligon to remove the snow and ice from the sidewalk or otherwise make it safe for travel." (p. 311.) Of course, it there appeared that there was an allegation of the responsibility on the part of the city for its failure to act. The attempt was to hold both the city and the defend' ant property owner. The plaintiff argued in that case that: "A condition can be caused by negligence as well as by active conduct, that negligence is the failure to perform a duty owed to someone, that by virtue of the city ordinance Neligon owed him a duty to remove or sand the ice and snow, and that because of his failure to do so he may be said to have caused the defect in the walk." (p. 311.) At page 312 of that case the Supreme Court further said: "It is true that an existing condition may sometimes be said to be caused by one who did not create it but permitted it to continue, though he was under no duty to remove it." That case simply went so far as to hold that the legislature had not used apt words to cast upon the property owner the duty claimed to have existed by the plaintiff, and that determ' ination was expressed in these words: "If it had been the intention of the legislature to cast upon property owners in Meriden the primary duty of keeping the streets reasonably safe, which would include the duty to remedy a defect, such as a dangerous condition caused by snow or ice, for the creation of which they were not responsible, it doubtless would have found apt words to create such a duty." (p. 312.) At page 313, in commenting upon other charter provisions, our Supreme Court said: "The Waterbury charter has con' tained a similar provision since 1895 . . . and we are not aware of any case in which it has been claimed that they im' posed any liability on the property owner for failure to re' move snow or ice from the sidewalk, though actions have been brought seeking to hold the property owner by reason of obstructions or defects claimed to have been created by him in the streets of those cities. . . . Apart from these charter provisions, an abutting owner is liable in damages for an injury resulting from a nuisance created by him in the highway which renders it unsafe for public travel." In Wladyka vs. City of Waterbury, 98 Conn. 305, at page 309, our Supreme Court said: "No cause of action can arise in Waterbury, due to ice and snow (only) on any of its sidewalks, because of this provision of its charter. The only cause of action in which snow and ice upon a sidewalk of Waterbury can have any part in furnishing a cause of action, is that provided by this charter provision,—one in which there is a structural defect in the sidewalk, and this structural defect has been rendered more dangerous by reason of snow and ice upon the walk at this point. Under this section neither the structural defect alone, nor the snow and ice alone, can create a cause of action, but when the structural defect exists and is made more dangerous by snow and ice upon the walk, the structural defect and the snow and ice in combination may create a cause of action provided the other factors are present." In the recent case of Willoughby vs. New Haven, 123 Conn. 446, 197 Atl. 85, action was brought against the City of New Haven and against the property owner and reliance was had upon the same charter provision which is invoked in the in' stant case. At page 451 of that case our Supreme Court said: "At common law there is no liability upon an abutting property owner for injuries resulting from the effects of natural causes upon streets or sidewalks such as the accumulation of snow or ice. Primarily it is the sole duty of the municipality to keep its streets in reasonably safe condition for travel, and not the duty of private persons." And quoting from City of Hartford vs. Talcott, supra: "So far as defects---result wholly from the operations of nature, the proprietor at whose front they exist is without responsibility for them. Therefore, where ice has accumulated upon a sidewalk to a dangerous extent it is the duty of the municipality to remove or cover it within a reasonable time after its formation." The anomolous part of the present statute is that it purports, expressly, to relieve the city from its liability and to transfer that liability to the adjoining property owner. The language used on page 451 of the opinion in the Wil' loughby case was carefully chosen and the part of the opinion which says: "Therefore, if the liability is or can be shifted from the municipality to the individual, it must be accom' plished by statutory or charter provision or by ordinance ade' quately authorized by such provision, and, being the creature of statute or such ordinance, it can be no greater than that specifically imposed thereby. Imposition upon abutting own' ers of a duty to clear walks of snow and ice, with a provision of a penalty by fine and costs for failure to do so or for clear' ing the same by the municipality and collection of the cost from the abutting owner, is not sufficient to render the indi' vidual, instead of the city, liable for injuries sustained by reason of snow or ice thereon. 'The labor performed by those who obey and the fines and expenses paid by those who do not, measure the extent of the advantages . . . derived . . .' " And further, at page 452: "It has not been held, and we are not aware of any case in which it has been claimed, that such charter provision imposed upon the property owner any liability to a person injured, for failure to remove snow or ice, and an ordinance merely requiring property owners to do so, and providing a penalty for failure, is insufficient to create such a liability," citing Stevens vs. Neligon, supra, page 313. And at page 453: "The assistance to the city which is obtained under ordinances making it the duty of abutters to remove snow and ice from the sidewalks adjoining their property relieves, to that extent, the burdens of labor and expense which it otherwise would necessarily, in discharge of its municipal duties, be subjected to, but the city is 'in no degree exonerated from its obligations in these particulars in consequence of the adoption of (such) ordinances.' The remedy of persons injured for damages sustained in consequence of snow and ice upon a sidewalk remains exclusively against the city." And again, at page 453 of the Willoughby case: "The distinction between cases where dangerous conditions have been created by individuals and in which they are held liable for the consequences under their common-law obligations as creators of a nuisance, and those relating to the consequences following neglect of a duty imposed by statute or ordinance to maintain, repair, or clear sidewalks, is manifest and radical. The decided weight of authority is that no liability to travelers or the city for injuries results from failure to comply with such statute or ordinance," citing 41 A.L.R. 217; 93 A.L.R. 803. And at page 455: "As we have pointed out, the placing of the duty of keeping sidewalks free of snow and ice upon the adjoining property owner—which was all that section 3 of the 1935 act expressly provided for—of itself would not carry with it to the property owner liability for injuries occasioned by failure to perform that duty." And further, on the same page: "Liability for damages for sidewalk accidents is potentially formidable—a fall on an icy sidewalk is often serious in its consequences and the damages heavy. It is certainly reasonable that imposition of such a new and serious liability upon an individual may not be accomplished by inference or unless expressly provided." One of the difficulties in the way of recovery on the part of the plaintiff in the Willoughby case was that in the 1935 act there was no provision for notice to the abutter of any action, similar to that which is contained in the 1937 act, and this was especially applicable since the injuries alleged to have been received were sustained on February 15, 1936 and before the changed legislation of 1937. Legislation in Connecticut which fastens upon a street railway corporation, organised under the laws of the State of Connecticut, the duty to make certain repairs in the roadway adjoining its rails, has been sustained. Coburn vs. Connecticut Company, 84 Conn. 654, where, at page 657, our Supreme Court said: . "This section creates a duty where before there was none, and through its operation there exists a liability, by force of §2020, which was not recognised at common law. The liability is not one which rests upon common-law negligence. It rests upon the failure to perform a governmental duty which the legislature has seen fit to have cast upon street railways. It creates an arbitrary standard of duty which is measured by the requirements of this governmental duty, in order that the demands of public travel may be met. Its foundation is entirely unlike that of common-law negligence." And at page 658: "We are of the opinion that in a proper case a party injured may have his election whether he will avail himself of the remedy of the statute or that of the common law." By way of distinguishing the imposed liability in the Coburn case from the attempted statutory imposition of liability on the abutting owner in the instant case, it may be observed that the defendant, Connecticut Company, was acting, fundamentally, as a private corporation and, as a part of the permission granted to it as a corporation, it was using the public highways for uses not available to any individual—much less to any abutting owner. In Montgomery vs. Branford, 107 Conn. 697, at page 705, our Supreme Court said: "But mere legislative enactment can never create a demand against a party who was not bound before, either legally or equitably. . . . The effect of the Act in question, if construed as claimed, would be to divest the property, and that too upon a consideration altogether past and gone." And at page 706: "The legislature may cure . . . irregularities and imperfections in tax proceedings, but it cannot . . . take the property of one person and transfer it to an' other." And at page 707, citing from Royster Guano Company vs. Virginia, 253 U. S. 412, 415: "The classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." This differentiation is to be considered in connection with the claim made in argument and brief by the defendant that it does not appear that the provision purported to be embodied in this legislation applies to any property owner outside of the City of New Haven. Continuing further, on page 708, our Supreme Court said in the Montgomery case: "The classification is not between any classes of leases throughout the State, or even in Bran-ford. Neither is it based on differences between different kinds of property or between owners in different situations. Neither taste, policy, difference of situation, or the like, or in fact any reason, is apparent in the classification made. A special exception is made but without basis for its support. . . . This, unquestionably, is class legislation. The taxation of a class must apply to all within the class, be uniform in its operation, reasonable and not arbitrary." And in another phase of the same litigation, at 109 Conn. 388, at page 392, our Supreme Court said: "In these respects it attempts to effect the same purpose as the Validating Act which was involved in the former case. What we said of that Act pari materia has equal application to the present legislation. It is undeniably arbitrary and not based upon any real and substantial difference having a relation to the subject of legislation so that all persons similarly circumstanced shall be treated alike." And at page 393: "If a tax is imposed which is 'in effect and purpose a denial to one of the enjoyment of rights indicated in the Constitution and the enjoyment of which it secures equally to all, or is a seizure of property of one for the benefit of another, or is an uncompensated confiscation of property, the law authorizing such exception is in violation of mandates contained in our Constitution', and probably in all American constitutions, and is therefore void,' " citing State vs. Travelers Ins. Co., 73 Conn. 255, 265, 266; and quoting therefrom at page 269, as follows: "The Fourteenth Amendment seeks to add the security of national protection to the two guarantees common to the State Constitution, by which life, liberty and property are free from invasion, except under the authority of law consistent with the Constitution, and by which any person or class of persons within State jurisdiction is secured against hostile discrimination in providing equal protection under the law in the enjoyment of rights belonging to all." In International Paper Company vs. Commonwealth of Massachusetts, 246 U. S. 135, 142, the Court said: "When tested, as it must be, by its substance'—-its essential and practical operation—rather than its form or local characterization, such a license fee or excise is unconstitutional and void as illegally burdening interstate commerce and also as wanting in due process because laying a tax on property beyond the jurisdiction of the State. ." "Thus the rule of uniformity must be observed with respect to the penalty as well as with respect to the tax. Also, if enforcement of the tax must be limited to particular property, enforcement of the penalty must be subject to the same limitation. It would be absurd to say that a tax could be enforced only against a particular lot on which it is a burden, but that the penalty for non-payment of it might be enforced against any other property of the owner. A tax imposed like this, without regard to a cash valuation, cannot be sustained by the general clause of the section of the constitution we have referred to. . . . The liability provided in the charter is one which subjects the owner to a personal action, and, for the reasons we have stated, it cannot be sustained. The duty to construct and to maintain sidewalks, being in the nature of a tax, is one that is owing only to the city, just as the duty to pay taxes for local improvements imposed in any other way. It is not, and from its very nature cannot be, a duty owing to third persons. . . . Now, whether it is competent for the legislature to make one liable to private persons for failure in the duty to pay taxes of any kind to the state or municipal corporations, is a very grave question." Noonan vs. City of Stillwater, 33 Minn. 198, 204, 22 N.W. 444, 447. The general rule is that no common-law duty rests upon the owner or occupant of premises abutting on a public street to keep the sidewalk in repair; consequently, such an abutting owner is not liable for a defect in the sidewalk in front of his premises, which he does not create. 41 A.L.R. 212 (Anno.). Abutting owners may be held liable for injuries resulting from defects in sidewalks, under charter provisions imposing upon them the duty of keeping the sidewalks in front of their property in repair, and expressly making them liable for injuries occasioned by reason of the defective condition of such walks. 41 A.L.R. 222 (Anno.). In this connection it should be observed that the statute here invoked expressly purports to make the property owner responsible to the member of the traveling public who is injured. "In general every partial or private law which directly proposes to destroy or affect individual rights or does the same thing by restricting the privileges of certain classes of citizens and not of others, when there is no public necessity for such discrimination, is unconstitutional and void." 6 R.C.L. p. 417, §413. "Efforts are not infrequently made by interested parties to procure legislation in their own behalf against other classes of the community, but such legislation is not favored by the courts and will be upheld only when it is strictly within the legitimate power of Congress or the state or municipal legislatures." 6 R.C.L. p. 417, §413. The equality clause of the federal constitution is not necessarily infringed by special legislation or by a legislative classification of persons or things. This clause only requires that the same means and methods be applied impartially to all the constituents of a class, so that the law shall operate equally and uniformly upon all persons in similar circumstances. It does not prohibit legislation which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions. 6 R.C.L. p. 418, §414. Although the decision in Flynn vs. Canton Co. of Baltimore, 40 Md. 312, did not involve the construction of a statute which expressly purported to place upon the property owner liability to an injured traveler by reason of the existence of or non-removal of or non-coverage of snow and ice upon a side walk, nevertheless it does contain some pertinent comments upon the power of the legislature to make the property owner directly responsible to an injured traveler for failure to remove or cover snow and ice in connection with an ordinance to that effect (p. 324): "Does liability to a private action follow from neglect to perform the duty or service thus prescribed? In our judgment it does not. The whole design and effect of this ordinance, was to secure the proper application of whatever labor and means were necessary to discharge the obligation then resting upon the city to keep its streets in a condition to be safely traveled. The work enforced under it, and the expense of doing it when performed by the employees of the city, together with the fines or penalties for neglect which may be imposed and collected, relieves the city to that extent from charges to which it would be otherwise subjected. Stated in a different form, our view of the effect of this ordinance is this: at the time of its passage it was the duty of the city to remove snow and ice from the sidewalks of its streets, so as to render them safely passable. The city was then provided with the means and power to discharge that duty. In the exercise of that power, it saw fit to provide by ordinance that the owners and occupants of premises abutting the sidewalks, should either remove the snow and ice therefrom, or be charged with the cost of such removal if done by its own officers or employees, besides being subjected to a penalty for each neglect. The property owners were thereby made the agents of the city for that purpose, just as the police force was. The two are placed on the same footing with respect to the liability we are now considering. It is made the duty of the former to do it in the first instance, and the duty of the latter to cause it to be done in case of neglect or refusal by the former. If a private action for damages lies against the former by reason of neglect to discharge the duty imposed by this ordinance, it lies equally against the latter. If it lies against the latter, then every ordinance defining in similar terms the duties of police officers, street commissioners, and other officials, agents or employees of the city, subjects them to a like responsibility. We cannot think such a result was ever contemplated by the framers of ordinances of this character. We find it supported by no adjudged case, and in our opinion it is not sustained by any sound legal principle. Again the persons upon whom this ordinance operates are provided with no means, and armed with no power adequate to meet the responsibility that would be thus imposed on them. They are required to perform this service for the benefit of the public, either by their own labor, or through their own private and unaided resources. The proposition contended for by the appellant would subject to the same liability not only the resident owners and occupants of property, but nonresident owners of vacant lots and houses, and persons having charge, etc. . . . The duty or service here required is for the benefit of the public, and in consideration of no private pecuniary gain to those upon whom it is imposed. It is not like the case where an individual is bound by a private statute under which he derives a benefit, or by a certain tenure to keep a road or bridge in repair, nor like the case of turnpike companies or other private corporations charged with the performance of certain duties by the Acts under which they are incorporated. In such cases the duty is perfect and binding at all times, and its neglect is followed by this responsibility, because it is founded on a valuable consideration or made the condition of the grant. Such being the nature of the duty required, and such being the character of the ordinance in question, we are of opinion the only liability resting upon the property owner is that which the ordinance itself imposes, vi?.: the prescribed fine or penalty for each neglect, and the cost of removal in every instance of his refusal or neglect. By enforcing these, every object the ordinance was intended to accomplish will be attained. The liability of the parties upon whom it operates extends no further, and against them an action like this cannot be maintained." The first case recorded, in the English decisions, in which it was held that a private person might have the benefit of an action against the person who neglected to conform with the statutory duty was Crouch vs. Steel, 3 El. & Bl. 402, 118 Eng. Rep. 1193. There, by an Act of Parliament, it was made the duty of ship-owners to keep on board their ships a sufficient supply of medicine suitable to accidents and diseases arising on sea voyages. A seaman who had suffered special injuries from neglect of this duty, brought an action on the case for damages against the ship-owner and the Court of Queen's Bench held he was entitled to maintain it, notwithstanding the act had provided a penalty for such default, recoverable against the ship-owner at the suit of any person. One of the reasons for so holding was stated to be that "the Act relied on in that case provided a benefit for the seamen as a class. It required ship-owners who derived gain and profit in the prosecution of their private business from the labor and services of seamen, to discharge a certain reasonable duty for the preservation of the health and comfort of those in their employment, and upon this view of the statute, we think the decision in that case is rested." The decision in that case was really based upon the theory previously expressed that "in every case where a statute enacts or prohibits.a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, and for the recompense of a wrong done to him contrary to said law." Flynn vs. Canton Co. of Baltimore, supra, p. 328. It was further said in the case of Flynn vs. Canton Co. of Baltimore (p. 328) that: "The distinction between that Act and this ordinance is broad and obvious. The latter was not enacted for the benefit of the plaintiff, as an individual, or as one of a particular class, but for the public at large. She was not in the employment of the defendants, and they were deriving no advantages from her services or labor. It belongs to an entirely different class of legislation." The same distinction is apparently applicable to the instant case. The plaintiff has and had no contractual or other direct relation to the defendant. The plaintiff is one of a class and is in no different position than any other traveler upon any highway in any part of the State—as distinguished from a specific traveler upon a highway in the City of New Haven. Another consideration to be borne in mind in determining the responsibility of the owner or abutter to a traveler is forcibly stated in the case of Heeney vs. Sprague, 11 R. I. 456, at page 461, where the then Chief Justice, in writing the opinion, said: "The question is, whether a person neglecting such a duty is subject not only to the penalty prescribed, but also to a civil action in favor of any person specially injured by the neglect. If the liability exists, it is quite a formidable one. A fall on the ice is often serious in its consequences. The damages resulting 'from it may amount to thousands of dollars. And under the ordinance the liability, if it exists, may be visited upon either the owner or the occupant of the abutting premises, or upon any person having the care of them. And further, if the liability exists under the ordinance in ques tion, it exists, pari ratione, under every ordinance prescribing a similar duty. To hold that it exists is therefore to recog' nize, outside the legislature, a legislative power as between individuals which, though indirectly exercised, is nevertheless, in a high degree, delicate and important. This we ought not to do, unless upon principle or precedent our duty to do it is clear; for we do not suppose that the creation of new civil liabilities between individuals was any part of the object for which the power to enact ordinances was granted." The application of this expression of opinion to the case in question of course is to be qualified by the consideration that the liability purporting to be imposed is, in this case, directly imposed by the specific statement in the act of the legislature and not by implication from an ordinance. Kirby vs. Boylston Market Association, 80 Mass. 249, 252, is cited as an authority for the proposition that such vicarious liability may not be imposed upon the property owner. The distinction must be observed that the right of action, in that case, was claimed to arise inferentially only out of the existence of the ordinance placing the duty upon the property owner in describing penalties for failure to comply with that duty. Of course, in the instant case, the city, by the terms of the statute out of which the duty is claimed to arise, purports expressly to be exempted from liability and the liability is expressly fastened upon the adjoining or adjacent owner. The case of Pisani vs. D'Antonio, et al., decided by Foster, J., and reported in 6 Conn. Sup. 44, goes no further than to decide that the present private act, by its express terms, ab' solves the defendant City of New Haven, from liability for injuries occasioned by a defective sidewalk including a dan' gerous condition caused by snow and ice, citing Wladyka vs. City of Waterbury, 98 Conn. 305, as an authority for the existence of power "limiting the existing statutory action for injuries from snow and ice on the sidewalk." In that case the constitutionality of an action purporting to fasten liability upon the adjoining owner or abutter for in' juries occasioned by the existence of snow and ice upon the sidewalk was not in issue nor was it passed upon. The pertinent phase in the decision in the Wladyka case,, supra, is found at page 309, where our Supreme Court said: "No cause of action can arise in Waterbury, due to ice and snow on any of its sidewalks, because of this provision in its charter. The only cause of action in which snow and ice upon a sidewalk of Waterbury can have any part in furnish' ing a cause of action, is that provided by this charter provi' sion,—one in which there is a structural defect in the side' walk, and this structural defect has been rendered more dangerous by reason of snow or ice upon the walk at this point." It should be observed that the adjoining property owner was not a party defendant in the Wladyka case and that the action was brought directly against the municipality and ver' diet and judgment against it sustained but entirely by reason of the statutory provision. The reasoning in Hanley vs. Fireproof Building Company, 107 Neb. 544, 186 N.W. 534, 24 A.L.R. 382, is interesting a.nd, in some respects, pertinent to the decision of the instant demurrer, viz. (p. 548) : "It must be noted, however, that the cases that support this rule carefully differentiate between such ordinances and ordinances where the duties enjoined are due to the municipality or to the public at large. As to this class of ordinances the authorities are almost, if not quite, unanimous that noocause of action arises to an individual against one who neglects to perform the duties enjoined. . . . It remains for us to determine to which class of ordinances the one in question belongs. Was it passed by the city of Omaha to provide for the safety and protect the lives of persons traveling the streets, or was it passed by such city for the pur' pose of imposing upon property owners a part of the duty of the municipality to the public for the benefit, not primarily of the individuals comprising the public, but of the munici' pality itself. This question is easily answered. Keeping in mind that the fee of the streets and sidewalks is in the munici' pality, that the duty of keeping such streets and sidewalks in safe condition for travel rests primarily upon the municipality, that the accumulation of ice and snow on the sidewalks, while an inconvenience, is not necessarily a menace to the safety or life of pedestrians, that its removal from the miles of side' walks usually found in a city is impracticable and almost im' possible by ordinary governmental agencies, it seems clear that the duty of the lot owners to remove the snow and ice is im' posed by the city as a means of carrying out its obligation to keep the sidewalks in condition for travel, and is owed to the •general public in its corporate capacity, and not to the individuals composing such public. . . . An examination of these cases shows that the walks and approaches involved were upon the private property of the landlord. . . . The appellant con' tends that the accumulation of ice and snow on the sidewalk in question constituted an 'attractive nuisance', and he has cited authorities to this effect. We do not see how this changes the situation. If, as we have found, the defendant owed no duty to the plaintiff to remove the ice and snow, then he would owe her no duty to prevent the creation of an 'attractive nuisance' by the accumulation of ice and snow, and, owing no duty to her, he cannot be made liable to her for the failure to perform a duty he owed to the municipality." By inference, at least, the allegations of the complaint show that the defendant owned the land abutting the walk where the plaintiff was injured for some time before the private act upon which the cause of action is based was enacted. Prior to or at the time the defendant acquired the land, the defendant had no reason to believe that the vicarious liability now claimed against her then inhered in or would be incident to the acquisition or the ownership of land in the City of New Haven. No consideration or benefit accrued to her which would, in any way, modify or alleviate the purported imposed burden of liability to third persons. While the special act purports to fasten this liability expressly upon the land owner in New Haven and, also, purports to absolve the city from its liability which came down upon it in direct descent from the original Public Act of 1672, yet the land owners of Connecticut in no city, other than New Haven, have had such statutory liability imposed upon them. Finally, this observation is important. Other acts, ordinances and general statutes have been interpreted which impose liability only after the lapse of a certain time—that is, a certain number of hours—after the snow had ceased falling or the ice and snow had come upon the sidewalk—but in this case no such period for preparation or antecedent to a default on the part of the property owner is provided. The provision of section 2 imposes upon the abutting owner the duty "of keeping sidewalks in said city free from snow and ice." The liability comes in upon the failure of the owner to keep the sidewalks "free from snow and ice" because that is the only breach of duty referred to and this is emphasised by the express allegation of this section of the statute and the other section of the statute in the plaintiff's complaint. Anyone acquainted with the varying Connecticut climate knows that it would be physically impossible to keep any side' walk in New Haven—or any part of Connecticut—"free from snow and ice." While it would be feasible to clear off the snow and ice within a certain number of hours after it ceased falling or to sprinkle sand or ashes upon it within a certain limited time, yet that is not the requirement of the statute nor is that sort of care involved in the conduct which might lead to the "breach of duty on the part of the property owner to keep such sidewalk free from snow and ice" as distinctly set out in the present section 2, which amended the former section 3 of the private act. An examination of the original, 1935 Special Act, No. 330, shows that that act contained the same bald provision because, in section 3 of that act, which is the present section 2 of the amended act, it was provided that: "The duty of keeping sidewalks in said city free from snow and ice shall be upon the adjoining property owner. . . ." The amendment required that notice be given to the owner, but neither in the amendment nor in the original act is there any time of grace or opportunity for the owner to take any action, either by'way of removal of the snow and ice or by way of sanding it, before the imposed statutory liability might be fastened upon the owner. For all of the reasons hereinbefore set out and stated the demurrer is sustained on all grounds.

Memorandum of decision in action involving maintenance of restaurant entrance. FOSTER, J. On March 24, 1940, at about 4 p.m., the plaintiff fell and was seriously injured upon leaving a building owned by the defendants and operated by their lessees as a restaurant. The injuries suffered by the plaintiff were so serious that, if judgment be rendered in her favor, the amount of damages awarded will necessarily be of a substantial amount. ( If judgment be rendered against the plaintiff, her loss will be equally great. In another way the determination' of the case is also important to the defendants. , If judgment be awarded ' against them, .they will not only be liable for the plaintiff's damages, but they will necessarily be subject to heavy expenses in the reconstruction of the entrance of'the building at which the plaintiff fell. The court is, therefore, warranted in expressing in some detail the reasons for the conclusion reached. The complaint is in two counts, alleging that the defendants maintained the entrance to the building in such manner as to constitute a nuisance, and in that they were guilty of negligence; which nuisance or negligence was or were a proximate cause of the plaintiff's injuries. The plaintiff in the first count of her complaint claims that on March 24, 1940, and for a long time prior thereto, the defendants were the owners of the building and premises known as No. 94 College Street in New Haven; that on that day and 'for a long time prior thereto, the defendants leased such premises to one Esther Kuritch, who conducted thereon a public restaurant and' tavern; that the only public means of exit from the premises was by way of a revolving door which opened directly onto the public sidewalk in front of the premises; that the floor level of the revolving door was approximately six inches (admittedly five inches) higher than the level of the adjoining sidewalk and that there was a single six-inch (admittedly five-inch) step between the two levels; that at about 4 p.m. on that day the plaintiff was an invitee on such premises and had had dinner in the restaurant; that as the plaintiff was leaving the restaurant she passed through the revolving door and fell and received injuries, because of the difference in levels of the floor upon which the door revolved and the sidewalk; that the difference in levels between the floor and the sidewalk presented an inherently dangerous condition in that it was located at, a place where proper and safe construction required a level footing, in that it was so constructed as to create a dangerous condition and a situation calculated to cause injury to persons lawfully using the same, in that its location close to the revolving door concealed it and made it dangerous to persons using the door and in that it was a single isolated step not marked in any way to attract the attention of persons lawfully on the premises; that the defendants knew, or should have known, that a step, located as was the step in question, was a menace to life and limb and created an inher' ently dangerous condition and knew the purpose for which the premises were leased, and that such condition made the premises unfit for the purposes for which they were leased, and knew, or should have known, that a dangerous condition existed and was maintained on the premises, and that such condition created a nuisance; that the plaintiff by her fall suffered a compound comminuted fracture of the right ankle with complete break of the medical malleolus, fracture of the posterior portion of the tibia at its lower end, fracture of the fibula, comminute for a distance of about two inches from its lower end, complete dislocation of the astragalus, parting of the ankle ligaments, severe nervous shock, great pain and suffering. In the second count of her complaint the plaintiff claims that in creating such conditions the defendants were guilty of negligence. The defendants deny that they maintained a condition in their building that constituted a nuisance, and they deny that they were guilty of any negligence in main' taining their premises in their then condition, and they allege that the plaintiff was guilty of contributory negligence that was a proximate cause of her fall and subsequent injuries. The plaintiff denies that she was guilty of any negligence contributing to her fall and injuries. Joseph Howard Candee is a photogfapher and, though not an engineer, he makes measurements. He has for many years acted as a witness in cases and has acquired full confidence of the courts in his accuracy and his impartiality. His testimony in this case is undisputed. His description of the door and step is as follows: "Mr. Hadden: Q—Now, Mr. Candee, will you give us the measurements that you made of this doorway? A—The doorstep from the sidewalk up to the doorway is a fivednch riser. Then the cement step is nine inches across the top, which is of a grayish material—cement I should say. Then there is a one and one'half inch black stripe that goes around of composition that is on the floor. As that on the floor is in blocks there are six'inch diameter red blocks as shown in this photograph, with white division lines between them. Q—Point that out again, please. A—These blocks are just inside the doorway with white division lines between them. Q—What are they made of? A—Red composition, and the opening in the doorway is 44% inches, and the door, itself—the wooden part—is 30% inches. Then there is a flange of pliable rubber and canvas which is 2% inches wide. It is 43 inches between the doors measuring from outside to outside, the door without the flange. The grab handles are 42% inches from the floor. The glass in the doors is 18% inches in width and 51% inches in height. The bottom of' the glass is 24 inches above the floor. The wood flange on the outside of the door is 7% inches. As I said before, there are four sections of the door. Those are all the measurements that I took on that case. Q—Now, this door, Mr. Candee, you say has four sections.' A—Yes. Q—¿-Which create four compartments, so to speak? A—That's right. Q—It is a revolving door, and what part of the door is fastened to any other object? A—-The center of the door. Q—The center at the top? A—At top and bottom on a pivot like. Q—Did you measure how far it is from where the door is fastened on the bottom to the front edge of the step? A—No,- I did not, but that would be about two inches and .a half to three inches beyond the width of the door and flange, which makes about 35 to 36 inches from the center of the door to the outside of the step. Q—Are you able to tell from your examination there and your examination of the picture how close to the step, itself, •.the outer.edge of that section of the door comes to the step? A—About 2% to 3 inches from the noser of that step. Q—Will you tell us again how far you say it is from where the center of the door is fastened, to the step? A—Well, the center of the door would be a little bit inside the woodwork around it, but the door, itself, measures 301/2 inches in width with a 2x/2 inch pliable flange, which makes 33 inches. Q—Now, Mr. Candee, these sections of this door, of which there are four, are each 33 inches wide? A—Yes, flange and woodwork and glass. Q—Whatever it may be, they are 33 inches wide? A—Yes. Q—And they come, when in the position shown in the photographs A and B, within 21/2 to three inches of the down step? A—Yes. Q—So that the angle formed by two sections of the door, where the two sections of the door come together at approxh .mately the center of the door, out to the step, itself, is from 35 Y2 to 36 inches? A—Yes. Q—And you say the step, itself, is 5 inches high? A—Yes. That is the riser. Q—And is the block of cement that forms the step on a level with the floor of the riser and the floor under the door? A—Yes. Q—That block of cement is 9 inches across the top? A—That's right. Q—And extends entirely across the "doorway, and is wider than the doorway? A—Yes. Q—There are two pillars on either side that rest on that cement block? A—Yes, and part of that curvature on that glasswork on that side beyond the pillar on each side, and then there is probably two or 2x/2 inches beyond that next to the'building there. Q—But the top of the step is on the same level as the floor under the door in the restaurant? A—Yes. Q—And that level is 5 inches above the sidewalk level as one comes out of the door? A—Yes. Q—Is the sidewalk in that area immediately adjacent to the step a cement sidewalk? A—Yes. Q—Is it the same color as the step itself? A—No, there is a little variation there. The step itself, is a gray, but it seems to me as though it had a little reddish tint to it. I noticed there was a different tint to the step than there is to the walk. Q—That is the only difference between the two? A—Yes. Q—They are both cement? A—Yes. Q—But you say there is a slightly reddish tint to the step that does not appear in the walk? A—Yes, that's right. Q—Those grab handles, swing around in a circle the same as the sections of the door? A—Yes, they are fastened right on the door. Mr. Mulvihill: ' Q—Mr. Candee, do I understand you to say that the depth of this compartment is 35 to 36 inches? A—From the center to the outside of the flange, yes. Q—Would that be the depth of each compartment? A—Oh, 35 to 36—excuse me. The door, itself, is 30^ and the flange 21/2, making practically 33 inches in the door, itself. Out to the edge of the step is where the 35 to 36 is. Q—When you say the flange, you mean the rubber flange attached to the woodwork of it? This quadrant there is 2x/2 inches in width? A—Yes, this rubber and canvas pliable. Q—When the door is open and any one of these quadrants are at right angles with the sidewalk, the distance between the rubber flange and the edge of this concrete step is 2x/2 to 3 inches, is that right? A—Yes. Q—That is when the door is at right angles? A—Yes. Q—How many grab handles are there? A—As I recall it, there are two. Q—Did you make measurements of the one nearest the floor above the floor of the restaurant and the one above that? A—421/4, the one nearest the floor; the one upper is 47. 47 for the upper one; 421/2 for the lower one. Q—Do these grab handles extend the entire width of the door? A—Well, very nearly. Q—You say the glass is transparent? A—Yes. Q-—I understood you to say that the floor of the restaurant is made up of cement blocks red in color? A—Well, I don't know that they are cement in the floor. It is some kind of composition. , Q—What is the color? A—It is two colors inside. The colors that I speak of are in the entry-way by the door—the reddish, and inside is a larger block that is kind of a reddish, and then another one, black. Q—There are red blocks within the four quadrants as the doors revolve? A—Yes. Q—Under the door? A—Yes, with a white stripe between them and a black border outlining them. Q—Where does this black border extend? The entire width of the doorway from side to side? A-—Yes, especially across the front. Q—Then I understood you to say that the cement step is 9 inches. Am I right on that? A—Yes, the tread part. Q—The tread part is 9 inches? A—Yes. Q—And it has a reddish tint? A'—-Well, slightly reddish. It is a little different tint than the sidewalk. Q—And the sidewalk is white? A—Well, it is a gray cement. Q—-That black border you speak of there is flush with the door? A—Yes, as I recall it is all flush there, the blocks and the border and the top of the tread. Mr. Hadden: Q—Is it solid beneath this glass in each one of these sections of the door? . • A—Yes. Q—Made of wood? A—Yes. Q—That glass comes down to within 24 inches of the floor? A—Yes." The plaintiff, a woman 59 years of age, had lived at the Hotel Taft for ten years. On the afternoon in question, an Easter Sunday, she went just across the street from the Hotel Taft, accompanied by a lady friend, to the restaurant in the 'building of the defendants and there dined. Upon leaving the building the plaintiff walked ahead of her friend. She pushed the revolving door, causing it to revolve. She testr fies: "I was looking ahead of me but saw no step." As she put her right foot forward, assuming that it would strike the same level as that from which she stepped, the right foot went to the level five inches lower than that from which she had stepped, and she fell and was injured. The plaintiff was an invitee upon the premises. If she is to recover judgment in this case, it must be on the ground of negligence of the defendants—not upon the ground of their maintaining a nuisance. "There was no ground upon which the defendants could be held liable in nuisance. Recovery upon the basis of a private nuisance can be had only by one who is injured in relation to a right which he enjoys by reason of his ownership of an interest in land. Webel vs. Yale University, 125 Conn. 515, 525." Hassett vs. Palmer, 126 Conn. 468, 476. See, also, Croughwell vs. Chase Brass & Copper Co., 128 id. 110. Having disposed of the question of nuisance we consider the question as to whether the defendants were guilty of negligence in constructing and maintaining this entrance as it existed on the day in question. In examining decided cases we find that construction similar to that in question is quite common; from the evidence we find somewhat similar construction existed in New Haven, where this building is located. And we also find that many persons have fallen on steps some' what similar to the step here considered. The mere fact that one falls on steps—the mere fact that one falls downstairs— does not prove that the construction and maintenance of the steps or stairs constituted negligence. Mr. Mott, a builder, an expert witness called by the .plaintiff, testified in part as follows: "Mr. Hadden: Q—In your opinion is this exit or entrance, which is both as shown in the pictures and as you have found it to exist in May, 1940, reasonably safe for public use? A—No. Q—Why not? A—Because there is a step. In operating the revolving door you have a door before you and you have to think of a door in the rear. You take hold of the door, and you push that door, and you are thinking of nothing else but the re' volving doop, and you are looking invariably straight ahead. You don't look down, because you don't have much of a chance to look down, because your body is rather close to the door, and consequently all you are thinking about—at least, all that I thought 'about—was opening that door, and before you really get through the door, you are ready for a step down to the sidewalk. Q—You mean there is a step or you are ready for a step? A—There is a step there. Q—Is the location of that step in the position that it is in with relation to the door what causes your opinion that that exit way is unsafe for public travel? A—Because you step down. You are forced to step down before you hardly get out of the doors. Q—I just want to summarize, Mr. Mott. Is it the location of that step down so close to the revolving door that caused what you have described as an unsafe condition? A—Yes. Q—Now, in leaving that restaurant, did you personally have, any experience with that step? Just answer that yes or no.' A—Yes. ' Q—What experience did you have with it? A—While going out through the revolving doors I did not trip but where I expected to step level, I stepped down, and it jolted me, and I took several steps forward toward the middle of the sidewalk. Mr. Mulvihill: Q—When did you trip? What date? About when? A—Oh, I don't know exactly. I went in there after the remodeling was made, as I say, a week or ten days afterwards. Q—Night or day? A—In the evening. Q—What time in. the evening? A—We went in there for dinner, I should say around seven or half-past seven, and came out. Q—You went m at halTpast seven and came out at half'past eight or nine? A—Yes. Q—When you were coming out the revolving door, did you look down to see if that step was there? A—I did not. Q—That was the reason you tripped, wasn't it? A—Well, it is rather difficult to look down. Q—Is that the reason you tripped? A—No, I tripped because I expected to go out on a level. Instead of that there was a step there. Q—In other words, you thought, when you left the res' taurant that particular night after the alterations had been finished, that the level of the floor of the restaurant was on the level with the sidewalk? A—No, I didn't think that, but I did expect it to be level until I got outside of the doors. Q—That is what I mean. Outside of the doors would mean outside on the sidewalk, wouldn't it? Out on the sidewalk? A—Yes. Q—In other words, you expected that the floor of Kaysey's Restaurant was the same grade as the sidewalk, when you went out? A—I didn't get that, quite. Q—You thought the level of the restaurant floor was the same level as the sidewalk when you went out? That's what you thought? A—If I recall—could I answer that in my way? Q—Answer the question. That is very simple. I am ask' ing you if you thought, when you went out that particular night a week or so after the alterations had been made. A—A week or ten days, yes. Q—About 9 o'clock in the evening, whether you expected to find the level of the sidewalk the same level as the restaurant floor? A-—-Well, I didn't expect it. In fact, I was not thinking. Q—You were not thinking about it at all? A—No, I was thinking of the doors, to get out through the,doors. Q—-Well, there are entrances to public buildings here in the City óf New Haven, theatres, hotels, with entrance to the sidewalk not on the same level with the hotel or theatre? Is that so? A—Theatres? Steps? Q—Yes, public buildings. A—Yes, public buildings but not' theatres. Q—How about the step at the Shubert? It is a step up, isn't it? A—When you leave the sidewalk, yes, to get into the vestibule. Q—-There is no question in your mind, Mr. Mott, that in this and other cities there are a great many public buildings where they have a single step at the entrance to stores, public buildings, hotels and the like, to make up the difference between the grade and the sidewalk and that of the floor of the public building? / A—-There are very few. Q—-Very few? A—Very few. . Q—Are you acquainted with the Anchor" Spa on Chapel Street, a- couple of doors from Kaysey's? Mr. Hadden: On Chapel Street? Mr. Mulvihill: College Street. A—Well, I haven't noticed particularly. Mr. Mulvihill: Q—How about the Mary Oliver store on the comer of College? A—It is an entirely different condition. Q—-Is it a step up? A—Yes. Q—How about the Roger Sherman Spa on the same street right next to the moving picture theatre, the Roger Sherman? A—There is a step there, but there is no obstruction. Q—There is a step up? That is all I am asking you, from the sidewalk? A—Yes. Q—How about the Greyhound Bus on the other side next to the Hotel Taft where the people go in to get the bus? A—There is a step there, yes. Q—How about the Professional Building next to the Annex of the Hotel Taft? Is that a step up? A—Several steps. Q—How many? A—I would say there were three. Q—How about along the building opened up by Michaels in 1941 at Christmas? Is there a single step up on the Temple Street side of that -building? A—Yes. Q—There is a step up there, isn't there? A—Yes. Q—How about your own building? You have a step up in your own building, haven't you? A—My office? Q—Yes, at 440 Elm Street. A—Yes, I have a step there. Q—And the concrete is the same color as the step, isn't it? A—Yes, but it— Q—That is all I am asking. By the Court: Q—How far is the door from the top of the step in your building? A—About a foot." Mr. Millard Matthias, a builder, an expert witness called by the defendants, testified in part as follows: "Mr. Hoyt: Q—In your opinion is the doorway at 94 College Street reasonably safe for use by the public? A—In my opinion it is reasonably safe. Mr. Hadden: Q—My question is, will you tell the court if there is any reason why that door could not have been placed back four feet, and a vestibule left before a customer coming out would come to the step? A—Well, if that door was back four feet, you would have a ramp. It would be too steep. It would be as dangerous as you claim this one is." In discussing the structural condition, plaintiff's counsel had frequently assumed that the door opens V-/2 to 3 inches over the nose of the step. It should be borne in mind that, while in its revolution the edge of the door comes to within lx/2 to 3 inches of the nose of the step, the center of the revolving door is 35 to 36 inches from the nose of the step; so, after starting to push the door open, one coming out of the door may upon looking down see the space about 35 to 36 inches before reaching the step. Plaintiff's counsel urged that a reasonable inference from the testimony of defendants' expert witnesses is that the construction of the entrance and door was so planned for the purpose of saving space within the res' taurant. Even if this be so, such purpose does not make illegal the entrance or the door; nor is such an inference of any weight in determining the question of negligence of the defendants. How far back from the nose of the step does plaintiff's counsel claim the door should have been located? If the door had been 20 feet back of and away from the nose of the step, and the plaintiff had 'proceeded forward from the •door as she testifies she did ("I was looking ahead of me but .•saw no step") and the plaintiff had suffered the same injuries as here alleged,. what act or condition could then be said to 'have constituted negligence of the defendants? Injuries caused by passing from one plane to a lower plane are frequent. They may arise from passing down sloping planes, by passing down one step or many steps. It is common experience that from childhood to old age people fall down stairs. No step or stairs is or are absolutely safe. It is, however, the legal duty of one constructing or maintaining a step or stairs to so construct and maintain them that they are reasonably safe for those using them in the exercise of due care. It is the legal duty of one using the step or door to exercise reasonable care. Reasonable care is that care which a reasonably prudent person would use under like circumstances and conditions as those surrounding persons whose conduct is under consideration. The defendants present cases in support of their claims that the condition here existing was reasonable and safe, and mat the fall of the plaintiff was due to her contributory negligence. "Persons entering {the defendant's} building were charged with knowledge that they were not entering from a perfectly level sidewalk, and that generally the floors of buildings are not of precisely the same elevation as the sidewalk, even where it is level. Customers entering or leaving stores cannot be unmindful of these almost universally prevailing conditions. Owners of buildings have a right to proceed in the'r constructions in view of this common observation on the pari of the public and assume in the actions of those who mac frequent their buildings the exercise of ordinary circumsnecJon as to their footing." Hoyt vs. Woodbury, 200 Mass. 343, 345. "Cntering and leaving stores, halls,.... office buildings, and o'her buildings. . . .adjoining surfaces are frequently at different levels, and the difference in level has to be overcome by one or more steps of greater or less height or by some other device. . . . We cannot think that such a construction is of itself defective or n 'giigent.... Moreover, the plaintiff had gone into th room, without stumbling, over the same step where she f 11 when coining out. It would seem that the accident was due, to say the least, quite as much to her own inattention as to tht presence of the step." Ware vs. Evangelical Baptist &c. Society, 181 Mass. 285, 286. "A step between one level and another does not ordinarily warrant a finding of negligence.... Differences in grade are especially to be expected at the division line between a public sidewalk and private property. One has no right to expect that the height of the riser will be uniform. 'People cannot expect upon land obviously in private ownership next a street the same condition that they might anticipate in a public sidewalk.' " Abrahams vs Zisman, 293 Mass. 375, 376. "It is not enough that the construction of the floor was not standard but it should further be shown that the deviation from the standard resulted in an unsafe and dangerous con' dition. That was not shown. True an expert witness, who was thoroughly examined, gave his opinion that it was dan' gerous but he based his opinion solely on the theory that all store floors should be level. While that is some testimony, it is not entitled to much consideration in the light of common knowledge that store floors as well as other places of public use very frequently have sloping floors quite similar to the one in question." Kelly vs. Loft, Inc., 124 N.J.L. 185, 186. "The happening of the accident does not and cannot of itself be evidence of faulty construction. Of course a condition may be so bad that its danger is readily -apparent, but in the authorities hereafter cited it will be noted that this court has repeatedly held that although a place may be dangerous and an avoidable accident has happened, yet the owner is not liable for faulty construction simply because the accident could have been avoided, unless it be one which could reasonably have been anticipated in the light of experience. Continued use for a long period of time without any accident negatived negligence arising out of claimed faulty construction." De Salvo vs. Stanley-Mark-Strand Corp., 281 N.Y. 333, 338. In an action to recover for injuries received in consequence of an obstacle upon the sidewalk, of such a character that the attention of all who passed that way would naturally be drawn to it, and their experience of its effect in obstructing travel be substantially the same, evidence that others passed it with' out harm, when it was in the same condition as at the time when the plaintiff received her injury, is admissible to show that it was not dangerous to one using ordinary care. Calkins vs. City of Hartford, 33 Conn. 57. In the present case it appears that many thousands of people have passed over the step in question and have entered and left the door in question without mishap or injury, and that only the expert witness introduced by the plaintiff had a slight mishap. "'Jpon entering the toilet compartment, she opened the door and ascended to the higher level without difficulty or mishap. Thus, she had actual notice that the step was there. Her eyes unquestionably saw the step up into, the toilet, else she would have stumbled. Had she been blind, her sense of touch must have disclosed to her the elevation, for she was compelled to raise her foot to reach it. On leaving, had she looked before plunging blindly into space, she must again have seen the floor below. The door itself was a warning that this very condition must exist... .Her duty required her to observe what was so clearly visible. Her testimony shows her thoughtless inattention to her surroundings, her neglect to look, and her careless assumption that the floor levels were the same. Careless persons cannot be prevented from hurting themselves. ". . . .No extraordinary situation confronted her; her faculties were not in any way impaired. The result cannot be foreseen if it be admitted that mere inattention or lapse of memory can excuse negligence. Such a rule would invalidate all sense perceptions, and would effectively put an end to the law of contributory negligence in the practical administration of justice." Wessner vs. Blue Ridge Transportation Co., 338 Pa. 161, 164. "This accident happened in the day time. Plaintiff alleges that this was her first visit to the booth, and to some extent relies upon this fact as a reason or excuse for her not guarding against the effect of the door's reaction, after being drawn in to allow her exit; and, also, for not bearing in mind the presence of the step-off in the floor. This position is without persuasive force. "Being in full possession of her senses, of sight and touch, and having safely entered the booth in the day time, argues convincingly that plaintiff fully appreciated and had knowledge of the physical set-up thereabout, and well knew what she must do in order to assure unto herself safe return from the booth into the larger apartment of the room, which, after all is said, should have been but a repetition of her acts and movements when entering the booth. . .She, of course, also knew, or is charged with knowing, that if unguardedly she stepped from the higher floor to the lower, there would also be danger of losing balance and falling heavily. "Plaintiff fell and was injured solely from her own negligence and lack of care. She is, therefore, without any cause or right of action against defendant in connection therewith." Burdeaux vs. Montgomery Ward & Co. (La. App.), 192 So. 728, 730. "It is clear that the conditions at the entrance were open and obvious, and only a half hour before the plaintiff's injury she had passed over the step and through the door." Sterns vs. Highland Hotel Co., 307 Mass. 90, 95. The conclusion that plaintiff's decedent was negligent in that he failed to make reasonable use of his senses in passing the lavatory which he sought in defendant's theatre, and where he had been before, and in opening the door to a stairway and proceeding to descend the unlighted stairs, was reasonably. reached, upon the facts. Knapp vs. Connecticut Theatrical Corp., 122 Conn. 413. "Indeed, it would seem reasonable that as when she entered from daylight the lighting was sufficient to enable her to find her seat unaided and to see and step up on the platform, the same lighting would have enabled her to see even better when leaving." Miller vs. Poli's New England Theatres, Inc., 125 Conn. 610, 613. "If we would concede that defendant was guilty of negligence, we think that [the plaintiff}, under her own testimony was guilty of contributory negligence as a matter of law. She stated that she was looking ahead when she pushed open the door and 'went out in a hurry.' In explanation of her failure to look she said: '....I didn't know the step was there.' She testified further as follows: " 'Q—Well, you had your eyes straight ahead of you? " 'A—I was looking where I was walking. I had my eyes out in the vestibule, where I was going to go out.... " 'Q—And you didn't look down to see if there was a step there or not, did you? " 'A—I had my arms full, but I was looking down. . " 'Q—But I say you didn't look at your feet? " 'A—I didn't look at my feet; I looked right through the door.... " 'Q—Then, you stepped out, taking it for granted that there wasn't any there, didn't you? You took' it' for granted as you pushed the door open that there wasn't any step there? " 'A—Well, yes.... " 'Q—.. . .If you had pushed it open and looked down at it, you could see that there was a step there? " 'A—I don't know whether I could or not. " 'Q—You didn't look to see? " 'A—I was looking out; I didn't look to see.' " Hixenbaugh vs. J. G. McCrory Co. (Pa. Super.), 20 Atl. (2d) 910, 912. "This attempted avoidance of the charge of want of care on her own part is fallacious, in that it is based upon what she did not observe on entering the store and upon what she says she was not called upon to notice at that time, rather than upon what was in plain sight and what she could have observed upon opening the screen when leaving the store. Upon opening the screen at that time, if she had observed, she would have seen the step'off to the sidewalk before stepping forward. On reaching the screen door, she pushed^ it open and stepped forward without looking, with the inevitable result in such cases—a hard fall and bodily injury. The proximate cause of her fall and injury was her inattention, and not because the step'off was dangerous in itself or in the conditions surrounding it. . . "In the present case, the difference in level was between the sidewalk and the entrance to the store, and, as was stated by the court. . .plaintiff had no right to assume that the floor of the store building was on the same level as the sidewalk. But, aside from this, she had entered the store from the street only a short time before, and knew of the difference in the level of the sidewalk and the floor of the store." Watkins vs. Piggly Wiggly Bird Co., 31 F. (2d) 889, 891. I find that the defendants were not guilty of negligence alleged in the complaint. I find that the plaintiff was guilty of contributory neglb gence which was a proximate cause of her fall and injuries as alleged in the first special defense appearing in the answer of the defendants. Judgment is rendered in favor of the defendants against the plaintiff.

Memorandum of decision on demurrer. MELLITZ, J. The question raised by the defendant's de murrer to the complaint is whether real estate, allegedly conveyed by the plaintiff's decedent while he was mentally incompetent, and as a result of fraud practiced by the defendant, may be recovered in an action by the plaintiff administrator, in the absence of an allegation that the property is required for the payment of debts. The real estate of an intestate decedent vests at once, at death, in his heirs. An administrator has no title to it, although he may bring it within the scope of his administration if a proper administration of the estate requires it. Bowen vs. Morgillo, 121 Conn. 161, 168. The title of the heirs is subject only to such rights as might arise out of a need to satisfy debts and expenses of administration. Perkins vs. August, 109 Conn. 452, 456. A right to have a deed, procured by fraud from a decedent, set aside, is a right which survives, and on the decedent's death passes to his heirs. 9 Am. Jur. Cancelation of Instruments §10, p. 357. Whether the personal representative of a decedent may maintain an action like the instant one in the absence of a shewing that the property is required for a proper administration of the estate is a question as to which the authorities are not in accord. In considering the divergent holdings, it should be noted that the common-law rule governing the devolution of the title to real estate, as it obtains in our own State, has been almost entirely abrogated in a number of jurisdictions. See 2 Woerner, American Law of Administration (3d ed. 1923) §337, p. 1118. In jurisdictions which adhere more closely to the common-law rule, the right of the personal representative to maintain the action, without a showing that the property is needed for the payment of debts, is denied. Reed vs. Brown, 215 Ind. 417, 19 N.E. (2d) 1015; Neelen vs. Holzhauer, 193 Wis. 196, 214 N.W. 497; Angel vs. Waligora, 296 Mich. 142, 295 N.W. 592; Miller vs. Bigelow, 67 Oh. App. 371, 36 N.E. (2d) 860; 9 Am. Jur. Cancelation of Instruments §10, p. 357; 21 Am. Jur. Executors and Administrators §1013, p. 944; 12 C.J.S. Cancellation of Instruments 1030. An examination of decisions in which the right to maintain the action, without such a showing, is recognised, discloses either an enabling statute or that the jurisdiction is one which does not adhere to the common-law rule. The effect upon this question of section 4956 of the General Statutes, Revision of 1930, under which an executor or ad ministrator is entitled to the possession, care and control of a decedent's real estate during the administration of the estate, does not appear to have been directly passed upon by our Supreme Court. In Bowen vs. Morgillo, supra, p. 168, it was held unnecessary to determine the question since there the heirs, of the decedent joined with the administrator as parties plaintiff. In Munger vs. Doolan, 75 Conn. 656, 662, where the statute was also referred to, the administrator was held entitled to maintain the action, but it was noted that a claim of some kind existed against the estate and that there was no other source, except the real estate in question, from which claims or expenses could be paid. With respect to the power of the personal representative over real estate under 'such statutes, in jurisdictions like our own, Woerner, supra, p. 1123, says that it is "a mere statutory power, given only for the benefit of creditors, and properly to be exercised only when the exigencies of the estate require; hence it is said that, where there are no debts or legacies to be paid, or where it appears that the personalty is sufficient for that purpose, there is no valid reason why the executor or administrator should have the possession of the real estate . . . " These views find support in the decisions of our Supreme Court. In State ex rel Moriarty vs. Donahue, 82 Conn. 308, 313, it is observed that real estate forms no part of the estate the administrator is appointed to adminster. In Hall vs. Meriden Trust & Safe Deposit Co., 103 Conn. 226, 234, it is said that the executor's right of possession is in derogation of the common-law title of the heirs, and exists only that the funds derived from the property may be used to pay charges upon the estate. In Remington vs. American Bible Society, 44 Conn. 512, 517, it was held that possession and control of administrators under the statute is for the benefit of the persons entitled to the real estate, and rents collected, if not needed for payment of debts, go with the real estate' to the heirs. In the light of the foregoing, it is concluded that the plaintiff administrator is entitled to recover the real estate involved only if the same is required for the payment of creditors or for some other purpose incident to a proper administration of the estate, and that the complaint is insufficient in the absence of an allegation that the property is so required. It may be pertinent to note that in Haussman vs. Burnham, 59 Conn. 117, 139, which was an action instituted by the decedent during his lifetime and involved title to real estate, the court observed that after the decedent's death his heirs were the only parties properly entitled to relief, and that the administrator was not entitled to relief, or to a judgment for the benefit of the heirs; also that where, as in Finnegan vs. LaFontaine, 122 Conn. 561, 568, the administrator seeks to recover assets conveyed by the decedent in fraud of creditors, a finding that the property is needed to pay claims against the estate is required to warrant a recovery of the property. The demurrer is sustained on the grounds assigned therein in par. 1 (b) (c).

Memorandum of decision on appeal from action of zoning board of appeals. BORDON, J. A careful study of the record of the pro' ceedings before the zoning board of appeals discloses no good reason for the board's action, except its unwillingness to ex' tend a harmless nonconforming use. The board could not possibly have concluded that the granting of this application would be detrimental to public health and safety on the basis of the evidence disclosed by the record. The appellant con' ducts a dairy at No. 68 Eaton Street, which is zoned as "B Residence." The premises have been so used for 35 years, .and by the plaintiff for 16 years. Apparently he keeps within the law, conducts a clean dairy and observes all regulations controlling his business. None of the authorities having juris' diction in the premises have any fault to find with him, his place of business or his business practices. Recently the State Milk Administration promulgated regulations requiring milk to be sold by weight instead of by liquid measure. In order to carry out these regulations the appellant wishes to erect, a small addition to his dairy to house a scale which he has purchased. The addition would be contiguous to the present dairy building and six feet in width. By housing the scale in the proposed addition, it would expedite the weighing of milk pasteurized in the dairy and eliminate the necessity for transporting it to a more distant point on the premise^. From a practical standpoint, the granting of the application would have done no violence to the zoning laws, the conscience of the board, or to the interests of property owners in the neighborhood; nor would it have depreciated property values of the objectors. The objections raised by property owners in the vicinity are frivolous and irrelevant and could not have had any weight with the board. Nevertheless, the board, in the exercise of its best judgment, declined to sanction the extension of a nonconforming use. The question for determination is whether, in doing so, the board acted arbitrarily or unreasonably. The court cannot decide this case on the basis of its own views, arrived at from a study of the record. It is not called upon to say whether the board's action is in agreement with its views. An appeal from the decision of the board does not require or permit the court, by trial de novo, to substitute its finding and conclusions for the decision of the board. Its functions are limited to a determination whether the board acted arbitrarily or illegally, or so unreasonably as to have abused its discretion. Blake vs. Board of Appeals, 117 Conn. 527. This the court cannot' find in view of the ultimate purpose of zoning to restrict uses of land in certain localities, and to discourage encroachments of nonconforming uses inconsistent with those permitted. Lathrop vs. Norwich, 111 Conn. 616. If the board's decision is' in harmony with the general purposes and intent of the zoning ordinances it cannot be disturbed by judicial action in order to give relief to one whose alien structure is opposed to the general interests in furtherance of which the restrictions for the district were adopted. To do so would be an undue impairment of the general purposes of zoning. Norcross vs. Board of Appeal, 255 Mass. 177, 150 N.E. 887. Although the board could have reasonably come to the conclusion that the proposed structure would be a harmless extension of the nonconforming use, and do no harm to the neighborhood, as is the belief of the court, it could also, at the same time, reasonably have assumed that the people in the neighborhood had indulged the hope that with the passage of time the nonconforming uses would give way to conforming uses, and the neighborhood would thereby become a more attractive one for residential purposes, thus enhancing property values therein. Greenwich Gas Co. vs. Tuthill, 113 Conn. 684. The ultimate purpose of zoning ordinances is to confine certain classes of buildings and uses to certain localities. The continued existence of those which are nonconforming is inconsistent with that object, and it is contemplated that conditions should be reduced to conformity as completely and as speedily as possible with due regard to the special interests of those concerned, and where suppression is not feasible without working substantial injustice, that there shall be accomplished 'the greatest possible amelioration of the offending use which justice to that'use permits.' 'The accepted method of accomplishing this result is as follows: The nonconformity is in no case allowed to increase. It is permitted to continue until some change in the premises is contemplated by the owner, when, in so far as expedient, the authorities take advantage of this fact to compel a lessening or complete suppression of the nonconformity.'" Thayer vs. Board of Appeals, 114 Conn. 15, 23. See, also, Williams, Law of City Planning and Zoning, pp. 202, 203; Lathrop vs. Norwich, supra, p. 623. Our Supreme Court has consistently sustained zoning boards where their decisions uphold provisions of zoning ordinances and where the right to vary is sparingly exercised by them. Refusal to permit a relaxation of the provisions of the zoning ordinance is part of the board's function and is consistent with the purpose for which it was created. Grady vs. Katz, 124 Conn. 525. For these reasons the court is of the opinion that it is without power to override the action of the Zoning Board of Appeals of Hartford, and the appeal is therefore dismissed.

QUINLAN, J. As Judge O'Sullivan well said in his mem' orandum on the demurrer, the law in these tax cases seems to be fixed by the facts of each case. In this case the taxes were paid voluntarily. That an error was made in the description by the assessors there can be no question, but a similar error, predicated on tax lists prepared by the taxpayer, for 1926-1927, brought no complaint from the taxpayer. Notwithstanding the plaintiff had been having the same difficulty in meeting its taxes for a period of several years during the depression, experienced by many taxpayers, no effort was made to check the amount of the tax. Based on its conduct toward the lists prepared by it, as well as upon its attitude during the period that tax payments were delinquent, it may be assumed that the assessment did not startle the plaintiff. If error followed the work based upon the tax map only, the plaintiff might be in a position to now complain. Having accepted the assessment, predicated upon its own lists, without protest or appeal for the reason that is now urged, it may be said to have led the assessors into perpetuating an error which greater care in describing the property in 1926 and 1927 might have averted. For instance, if it had been suggested that the property on the railroad side was bounded by a fence or if measurements were given, the tax map undoubtedly would have been made to conform to such a description and the tax assessors would have been put on notice to investigate. Naturally when no complaint was made as to an assessment preceding 1928 containing general bounds capable of being interpreted as it was by the assessors' office, it must be said that the original fault was with the taxpayer. In any event, no examination of the tax abstract was made by the plaintiff, and in view of this and the foregoing, as well as the public interest, it does not appear that this is a case factually entitled to the consideration given in Bridgeport Hydraulic Co. vs. Bridgeport, 103 Conn. 249, but is more akin to Pitt vs. Stamford, 117 Conn. 388. Judgment for the defendant.

DICKENSON, J. The only relief asked in the complaint is for a declaratory judgment. The plaintiff claims an instrument purporting to be a lease executed by a predecessor in title is invalid because the lessee "did not execute said lease or subscribe her name thereto", and asks that it be declared invalid. The lease was admittedly signed by the then owner of the premises. It does not bear the signature of the lessee. Evidence was introduced that she was not present when it was executed by the lessor but that her husband, who was her agent, represented her in the transaction, took delivery of the lease and occupied the premises under it. It is admitted that the instrument was recorded and the plaintiff had notice of this when he took title. It further apears that upon execu' tion of the lease the lessor was paid $1,000 on account of rent for the last, or fifth year it was to run. Section 5018 of the General Statutes, Revision of 1930, pro' vides that a lease for more than one year shall be ineffectual against any person other than the lessor unless executed, at' tested, acknowledged and recorded in the same manner as a deed of land. A lease is primarily a conveyance of an interest in land. Since the execution of the lease by the lessor may be said to constitute performance on his part, the lease for that reason may be considered a unilateral agreement. In re Eldgewood Park Junior College, Inc., 123 Conn. 74, 77. It can hardly be said, then, that the lease was not executed in compliance with the statute "in the same manner as a deed of land." It was executed, delivered and a substantial con' sideration paid. But even were it not executed in accordance with the statute it would be good as between the parties. If, as the plaintiff claims, the factual situation here is not identical with that in Andretta vs. Fox New England Theatres, Inc., 113 Conn. 476, the rule there applied applies with greater force here, for the plaintiff admittedly had notice of the recording and that was "sufficient to put a prudent man on inquiry." Inquiry would have disclosed, what has appeared in evidence, that there was a good lease between the original lessor and the defendant. Judgment is directed for the defendant.

QUINLAN, J. Upon the argument of this demurrer the-right was reserved by plaintiff to file a brief in support of her contention. This reservation was overlooked by the Court- and a decision filed without the assistance of that brief. When the situation was called to the atténtion of the Court: the decision was withdrawn and the brief accepted. In the original memorandum reliance was placed on a decisión of Judge Ells of our Court sustaining a demurrer in a similar case. Since the decision of Judge Ells the Court of Appeals of New York, in the case of Mertz vs. Mertz, 271 N.Y. 466, has considered the effect of our law allowing a wife to sue her husband, in New York State, where a disability attaches to both husband and wife, for an injury sustained in Connecticut. Among other things the New York Court said (p. 469): "A trespass, negligent or willful, upon the person of a wife, does not cease to be an unlawful act though the law exempts the husband from liability for the damage." The Court said further (p. 470): "A cause of action for personal injuries is transitory. Liability follows the person and may be enforced wherever the person may be found." The Court also said (p. 471), and our Court is m accord with this principle, that "the test of a right to resort to the courts of this State for enforcement of a foreign right exists 'unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep rooted tradition of the common weal'." Also, the New York Court announced (p. 473) that "the law of the forum determines the jurisdiction of the courts, the capacity of parties to sue or to be sued, the remedies which are available to suitors and the procedure of the courts." If the unlawful act has not ceased to be such and the action is transitory and the law of the forum accords a wife the right to sue her husband and it is not against our public policy, then it is difficult to see the merits of the demurrer and I am constrained to reverse my original impressions and consequently overrule the demurrer.

INGLIS, J. This information in the nature of quo warranto is brought to test the authority of the defendant to act as a special state's attorney in- the filing in the Superior Court at Waterbury, of an information charging crime against the relator and others. The plea alleges, in substance, that, on February 4, 1938, Lawrence L. Lewis, the state's attorney at Waterbury, and William B. Fitzgerald, the assistant state's at' torney, made application to the Court reciting that they were disqualified to act with reference to the further investigation and prosecution of possible crimes in connection with the af' fairs of the City of Waterbury and praying that a special at' torney be appointed by the Court for the purpose of conduct' ing such investigation and prosecution. It further alleges that thereupon the Court appointed the defendant Hugh M. Alcorn as such special state's attorney and thereafter the de' fendant took the oath prescribed by law. The contention of the relator on this demurrer is in brief that certain conditions prerequisite to the appointment of such a special state's at' torney as provided in section 829d of the Supplement to the General Statutes (1937) did not exist in connection with the appointment of the defendant. Said section 829d so far as it relates to the present contro' versy, reads as follows: "Special prosecuting attorney. If the state's attorney or assistant state's attorney in any county shall be absent or disqualified to act in any cause pending before the superior court, wherein the state is a party, said court may appoint a special attorney for the prosecution of such cause. . ." The first contention of the relator is that this section is to be so interpreted that before such a special state's attorney is appointed there must be a criminal action pending in the sense that either an indictment or an information has been filed in the Court, and that, in this case, such was not the situation at the time the appointment was made. If such were the correct interpretation of the statute, the statute itself would be practically nugatory. If a state's attorney is disqualified to act in the prosecution of a case he is certainly disqualified to decide whether a prosecution should be instituted. He is disqualified to sign or file an information. If no one may be appointed a special state's attorney until after an information is filed there is no one qualified to insth tute the proceeding and the criminal goes unpunished. It is no answer to say that proceedings may be instituted in a lower court and bound over to the Superior Court because it has so long been recognized and settled procedure in this State for criminal actions to be instituted on informations filed by the state's attorneys in the Superior Court, that it is hardly to be imagined that the Legislature in adopting said section 829d intended to do away with that procedure where a state's attorney was disqualified to act. Likewise it is no answer to say that proceedings may be had under section 691 of the General Statutes, Revision of 1930, because that section itself requires that the proceedings be initiated by a qualified state's attorney and, moreover, it is controlled by the provisions of section 679 which apparently limit its use to cases of corrupt practices. Accordingly, it is clear that if section 829d is construed in such a way that no special state's attorney may be appointed until after an information has been filed in the case in which •he is to act, then the prosecution of crime will be greatly hampered, to put it mildly. "The intent of the lawmakers is the soul of the statute, and the search for this intent we have held to be the guiding star of the court. It must prevail over the literal sense and the precise letter of the language of the statute. . . . When one construction leads to public mischief which another construction will avoid, the latter is to be favored unless the terms of the statute absolutely forbid. . 'A statute should be construed, having in view the nature and reason of the remedy and the object of the statute, in order to give effect to the legislative intent.' " Bridgeman vs. Derby, 104 Conn. 1, 8. With these considerations in mind it is apparent that the true interpretation of section 829d is quite different from that for which the relator contends. The wording of the statute is: "If the state's attorney . . . shall be absent or disqualified to act in any cause pending before the superior court, wherein the state is a party. ." A "cause" as used in the statute is the equivalent of a cause of action. That is, it is a set of facts upon which it appears that a right has been violated or a wrong committed. In this sense, when a crime has been committed, that is, when the right of the State has been violated, a cause of action has come into being. The cause is in existence as soon as the crime is committed. The word "pending" in the common usage of the word as stated in Webster's New International Dictionary means, "hanging, overhanging, hence imminent, impending." In that sense, as soon as a crime has come to light the cause is pending. The prosecution is imminent and impending and if the cause is of such a nature that it is within the jurisdiction of the Superior Court it is a cause pending before the Superior Court. The word "party" in the phrase "wherein the state is a party" does not mean a party of record. It means simply the person whose right has been violated. The whole phrase therefore refers to a cause wherein the State is the person whose rights have been violated irrespective of whether a court action has been started so that it has become a party of record. Accordingly, the reasonable interpretation of the statute is to the effect that a special state's attorney may be appointed by the Court whenever it appears that the state's attorney is disqualified to act with reference to any crime which is sup' posed to have been committed or with reference to any cause of action in which the rights of the State are claimed to have been violated when the prosecution of such cause of action is imminent or impending in the Superior Court. On the allegations of the plea in this case that was the situation when the defendant was appointed special state's at' torney. It was apparent that it was at least suspected that a cause of action in favor of the State existed and that it was imminent that such cause of action would come before the Superior Court at Waterbury. It might fairly be said, there' fore, that such a cause of action to which the State was a party was pending in that Court. Accordingly, if the state's attorney were disqualified to act in such a cause it was proper under the statute to appoint a special state's attorney. The second main contention of the relator is that the regular state's attorney was not disqualified because the regular state's attorney for New Haven County, Mr. Hoyt, was not disquab ified. This raises the question as to whether the state's at' torney for New Haven County has authority to act as such in the judicial district of Waterbury, and this calls for an inter' pretation of section 1633c of the Cumulative Supplement to the General Statutes (1935). That section makes it clear that the state's attorney at Waterbury has the same powers and duties within the judicial district of Waterbury that other state's attorneys have in their respective counties. Although there is a provision whereby the state's attorney for New Haven County may request him to assist at criminal terms in New Haven, when he acts at Waterbury he is a state's at' torney and in no sense an assistant to the state's attorney for New Haven County. If the state's attorney for New Haven County had power to prosecute in the district of Waterbury there would be a conflict of authority between the two. If both could act, one might institute a prosecution which was against the other's better judgment and then the other would have authority to terminate that action. Such a situation would be intolerable. The statute should not be so construed as to permit it if it is open to any other interpretation. The most natural interpretation is that the intention of the Legislature expressed therein is that the judicial district of Waterbury is a jurisdiction on exactly the same plane as are the respective counties of the State and that the state's attorney at Waterbury has full and exclusive power to prosecute crime within that district. The state's attorney for New Haven County has power to prosecute for New Haven County outside of the district of Waterbury, but has no concurrent power within the district of Waterbury. It follows that when section 829d speaks of a state's attorney "in any county" being disqualified it contemplates that the district of Waterbury is a county by itself independent of the rest of New Haven County. Accordingly, it was not necessary for it to appear that Mr. Hoyt was also disqualified before a special state's attorney might be appointed at Waterbury. Another consideration bearing on the whole situation is this: It is to be noted that the statute, section 829d, does not provide nor contemplate that the appointment of a special state's attorney shall be made in a criminal case. The gist of the statute lies in the final clause: "said court may appoint a special attorney for the prosecution of such cause." That is, it is not essential that any case be pending in the Court to give the Court jurisdiction to make the appointment. All that is necessary to give the Court jurisdiction is that it appear that the state's attorney is disqualified. The Court is not coram non judice because no particular criminal action is pending in the Court at the time the order is entered. If the Court is satisfied that the state's attorney is disqualified to act it has jurisdiction to enter the order appointing a special attorney. The Court having jurisdiction to enter the order when the order is entered, it is final and conclusive even though the Court had erred in finding that the state's attorney was disqualified in the sense prescribed by the statute. It is a judicial determination which can not be attacked on quo warranto' proceedings. Moreover, entirely aside from the statute, it would seem that the Court would have power to appoint a special prosecutor where that became reasonably necessary for the proper administration of the criminal law. The Constitution vests in the Courts the judicial power of the State. Upon the Courts is placed the responsibility to "interpret and administer the law." 35 C.J. 124. Accordingly, a Court must have the inherent power to appoint such officers of the Court as are reasonably necessary for the proper administration of the law. From the earliest times it has been recognised in Connecticut that it was incumbent upon the Courts to appoint prosecutors. State vs. Keena, 64 Conn. 212. If it is an inherent power of the judiciary department, it is fundamental that such a function may not be curtailed by the Legislature. Even though the Legislature forbade it, therefore, the Court would still have the power to appoint whatever officers were reasonably necessary for the accomplishment of justice. Where the Legislature has been silent, still more obvious is it that the Court has the power. Accordingly, if it were true that because of a narrow interpretation to be placed upon section 829d the Legislature has made no provision for the appointment of a prosecuting officer in a case which has not actually been instituted in Court by the filing of an information, if such a prosecutor were necessary for the accomplishment of justice it must be that the Court would have the inherent power to appoint such an officer. For the foregoing reason the demurrer to the plea is overruled.

QUINLAN, J. The motion is argued entirely on the claim that the Court erroneously charged the jury in this language: "The driver who has the statutory right-oTway has also the right to assume that the other will grant it to him and have his car under such control that he while in the exercise of due care may proceed through the intersection without danger of collision. Of course if that driver arrives there at a time which would involve him in the possibility of collision, he would not have the right'oTway." It may be unfortunate that this language was used, espe' dally the last sentence thereof. Read in connection with sev' eral other parts of the charge it means no more than that were he to be involved in the possibility of collision he would not have the right of way, at all events, and the very next sentence which is not complained of, proceeds to state that right of way does not mean an absolute right of way where one can disregard all caution. Among other things, the statute was called to the jury's at' tention, the through street statute was likewise quoted and the relation thereto of the right of way at intersections, and the three or four paragraphs following the excerpts criticised were devoted to what seems to me to be a correct statement of the right of way at intersections. Considered as a whole, I think that the charge might by an impartial critic be considered as even more favorable to the defendant than to the plaintiff. The motion is denied.

ELLS, J. This is an appeal from the Bridgeport Board of Relief, and the issue is whether certain real estate purchased for ultimate charitable use, but not yet devoted to that use, is exempt from taxation. The exemption is claimed under section 1163 of the General Statutes, Revision of 1930, which exempts "as long as used by the public for public purposes, property held by trustees named in a will or deed of trust. . . ." It is contended that from the moment these trustees purchased this property with the bona fide intention of later using it for the Klein Memorial it became exempt from taxation. But the statute says "as long as used . . . for public purposes" and it is conceded there was, on the taxing date in question, no actual use for such purposes. Much violence must be done to the wording of the statute if the trustees' contention is to prevail. The argument is, in effect, that under the unusual circumstances of this particularly worthy case, it ought to be the law. But the exemption statute is to be strictly construed, and in this case even a most liberal construction does not attain the desired result. If the statute said "used for public purposes" there might be more force to the contention—but it actually says, and means, "used by the public for public purposes." Those three words "by the pub' lie" mean something and are decisive. Sympathy with the aims and purposes of this splendid project do not permit this Court to write into the statute something which is not there. As Chief Justice, Andrews said in City of Hartford vs. Hartford Theological Seminary, 66 Conn. 475, 482: "Exemptions, no matter how meritorious, are of grace, and must be strictly construed. They embrace only what is strictly within their terms." An examination of our Connecticut cases reveals no case in point, but there are significant observations supporting my conclusion. Cases in other states cited by the plaintiff are governed by the statutes of those states. Judgment is for the defendant.

FOSTER, J. The plaintiff appealed from the decision of the Board of Relief of the City of Meriden, relative to the assessment of his property on the list of 1932, and such appeal was decided against him, and the Supreme Court of Errors af•firmed the action of the Superior Court. Somers vs. Meriden, 119 Conn. 5. The plaintiff appealed from the decision of the Board of Relief relative to the assessments of his property on the lists of 1934, 1935 and 1936—three separate appeals. 'These appeals were tried together before this Court and in each case the appeal was dismissed. The defendant now moves in each of the three cases for a •'further allowance by way of indemnity as permitted by statute. (Gen. Stat. [1930] §2271). The statute provides: "In difficult or extraordinary cases in the superior court, where a defense has been interposed, the court may, in its discretion, make a further allowance to the prevailing party, not to exceed one hundred dollars." In the cases to which these motions apply, the plaintiff at' tempted to show that a different state of facts existed than at the time of the assessment of October 1, 1932; but the Court has found little, if any, further ground upon which the plain' tiff might predicate such appeals. The trial of these cases occupied much time. Much time of counsel for the City of Meriden was required, not only for the trial of the cases, but also for preparation for trial. In the trial of these cases it was necessary for the City of Meriden to employ and present numerous expert witnesses. The indemnity fee seldom reimburses a party for the time and expense required in the presentation of a case. The stat' ute does, however, provide that in "difficult or extraordinary cases" a "further allowance" may be made to the prevailing party. The provision of the statute is so worded as to indi' cate the intent that for one trial "further allowance" should not exceed $100. Here there was but one trial, though there were three cases. The Court is of the opinion that a further allowance of $100 should be made to the defendant by way of indemnity. Instead of dividing this sum into three parts, it is allowed as to one case and disallowed as to the two other cases. Upon case number 47645 an extra allowance by way of in' demnity of $100 is allowed. In cases numbers 49962 and 52621, the motions for further allowance are denied.

MOLLOY, J. This action as originally returned to court is one in the nature of a replevin action. In the copy thereof, left in service, the names of the principal, his surety and witnesses to the bond appended to the writ were typed. The Court sustained the plea in abatement filed by the defendant for that reason. Within a few days the plaintiff filed a motion to amend the bond in the copy of the original writ in such a manner that the written signatures of the respective parties referred to above would be substituted for the typewritten signatures. No one appeared in behalf of the defendant in opposition to this motion. It was therefore granted. Subsequently the defendant filed a motion for reargument which was granted. So that the question now before the Court is whether or not the Court had the power to allow such an amendment as the plaintiff proffered, after a plea in abatement sustained. It is the argument of the defendant that the bond does not come within the meaning of "replevin writ", therefore should be considered separate and apart from the replevin writ and complaint; that the defect is not avoidable but void, therefore cannot be amended, as the process no longer exists as far as the Court is concerned. In other words, that the defect is fatal to the entire action. The plaintiff bases its right of amendment upon sections 5538 and 5541 of the General Statutes, Revision of 1930. The first concerns amendments after plea in abatement sustained; the latter permits amendments for any defect, mistake, or informality in the writ or complaint. The earliest case, which might be considered apropos of the instant problem, is Hilton vs. Osgood, 49 Conn. 110. In that case the plaintiff desired to substitute the correct party defendant. To be sure, the statute concerning substitution of proper parties defendant was involved, under which such an amendment could be allowed at any stage of the case. The Court said (p. 112) : "It is further said by the defendant that, even if another defendant could have been added by way of amendment before the process was abated by the court, yet it can not be done after such abatement, because the case is then out of court. We see no reason why such an amendment cannot be allowed after the abatement as well as before. We have an ancient statute which provides that 'if any plea in abatement of any process be ruled in favor of the defendant, the plaintiff may amend the defect on paying to the defendant his costs to that time' . . . We see no reason why this statute does not apply to the case, and allow the amendment if it could have been allowed in any stage of the case." Another case throwing some light on this question is Butterfield vs. Brady, 111 Conn. 112, wherein there was a defective recognizance. The defendant in this case pleaded in abatement after he had chosen to ask for a new and sufficient recognizance due to certain irregularities in the recognizance which he claimed voided it. The Court sard that having made his choice of remedy he waived the defect as far as the plea in abatement was concerned; that although the requirements of the statute were not observed, and the failures to observe them were serious irregularities, they did not destroy the jurisdiction of the Court, although if pleaded by the defendant they would have abated the action. The Court then said, on page 113: "The requirement of the recognizance was for the sole benefit of the defendant"; and on page 114 said: "The defendant having taken his position with knowledge of the facts, together with a belief that the irregularities in the recognizance voided the writ instead of merely making it voidable, cannot afterward be permitted to take a position inconsistent . . .'* I judge from this statement that the belief of the defendant that the irregularities voided the writ was erroneous. They made the writ merely voidable. In New Haven Loan Co. vs. Affinito, 122 Conn. 151, an appeal to the Court of Common Pleas was to the "next term of the Court of Common Pleas." This was defective. A plea in abatement was sustained. The plaintiff sought to amend by substituting the words "next return day" for the words "next term." The plea in abatement was the appropriate reim edy for such an irregularity. The Court, in speaking of the attempt to amend, relied on section 5536 of the General Stat' utes, Revision of 1930, concerning circumstantial defects, and then referring to section 5538, upon which the instant plaintiff jelies, said the amendment should have been allowed. Section 5538 provides: "If any plea in abatement of any process be ruled in favor of the defendant, the plaintiff may amend the defect on paying to the defendant his costs to that time. . . ." Our policy regarding amendments is one of liberality. This idea is illustrated particularly by the three cases referred to above, in all of which serious defects were held to be subject to correction by amendment. One of the cases concerned a defective recognisance, and the Court held, if I read it aright, that it did not make the writ void but voidable. So in the instant case, while the defect subjected the writ to abatement, it did not make it void but voidable. This being so, it could be amended, as the plaintiff seeks here to do. However, by section 5538, the granting of an amendment is made subject to the plaintiff "paying to the defendant his costs to that time"; that is, to the time of sustaining of the plea in abatement. This requirement seems clear and definite. The permission to amend may stand and in accordance with the statute, the plaintiff is ordered to pay the defendant his costs to the time of the sustaining of the plea in abatement.

Memorandum of decision in action arising out of collision of automobiles at intersection. BORDON, J. In case No. 32821 the plaintiffs were innocent bystanders injured as a result of the collision between Sibley's and Mallahan's automobiles. In this case both owners are defendants. In case No. 32923 the plaintiff, Mallahan's wife, was a passenger in his automobile and sued only the defendant Sibley. If the collision was due entirely to Mallahan's. negligence, the actions against Sibley must fail. If, however, Sibley was concurrently negligent, then he is equally liable with Mallahan. The driver of the Mallahan car was negligent aside from his failure to see and observe the stop sign. His entry into the intersection of the heavily traveled thoroughfare without slowing down, as warranted by existing conditions in the immediate vicinity of the intersection at that moment, was negligence. The fact that he did not see the defendant until the collision was imminent indicates a failure to use his normal faculties of observation. These acts on his part' materially contributed to the collision. The defendant Sibley contends that Mallahan's failure to stop at the stop sign was the sole proximate cause of the accident, and that this act was the substantial factor in producing the plaintiffs' damage and injuries. It is contended that if Mallahan had stopped, pursuant to his statutory duty, there would have been no accident. With this the court is in agreement. It may, however, also be said that if Sibley had stopped there would have been no accident. The court must test the propriety of conduct by what either or both parties did rather than by what neither did. In discussing a similar point in Smithwick vs. Hall & Upson Co., 59 Conn. 261, 269, the court observes that if the plaintiff "had never been born, or had remained at home on the day of the injury, it would not have happened; yet no one would claim that his birth or his not remaining at home that day, can in any just or legal sense be deemed a cause of the injury." And so in the instant case what Sibley did when he saw Mallahan in the intersection determines the propriety of his conduct. Had he seen Mallahan in Elm Street, east of the stop sign, he would have been justified in proceeding through the intersection in the belief that the statute would be observed by the other car. However, when he reached the intersection the other car was already in it, and he knew that the driver had failed to observe his statutory duty. Under such circumstances it was his duty to slow down or stop as the exigencies of the conditions, at that moment, demanded. "The defendant was entitled to assume that the driver of the other vehicle would observe the provisions of the statute until he knew or, in the exercise of reasonable care, should have known that the assumption had become unwarranted." Johnson vs. Shattuck, 125 Conn. 60. His failure to act accordingly constitutes negligence and this negligence was as much the proximate cause of the plaintiff's injuries as was the negligence of Mallahan. By proceeding through the intersection, under the circumstances, he set in motion certain factors which were bound to produce damage, and these factors continued down to the setting in motion of the final injurious force which immediately produced the damage, thus becoming, in connection with Mallahan's negligence, the substantial factor. Mahoney vs. Beatman, 110 Conn. 184. The negligent act of one does not relieve the other from liability if he could have avoided injury by acting as a reasonably prudent person under the circumstances. If he fails to do so, he is equally liable for the consequences of his act. Smith vs. Conn. Railway & Lighting Co., 80 Conn. 268; Bullard vs. de Cordova, 119 id. 262; Smirnoff vs. McNerney, 112 id. 421; Connellan vs. Coffey, 122 id. 136. An exhaustive statement on the question of proximate cause is contained in our Supreme Court decision of Kinderavich vs. Palmer, 127 Conn. 85, and cases therein cited. The principle therein enunciated was adhered to and further clarified in Cosgrove vs. Shusterman, 129 Conn. 1. From a careful study of these cases it would seem that the defendant Sibley can escape liability only if the negligence of Mallahan, independently of anything done by him, was the sole proximate cause of the plaintiff's injuries. The evidence, however, is clear that Mallahan's negligence alone would not have resulted in injury to anyone. It so resulted because of Sibley's act in proceeding through the intersection although cognisant of Mallahan's wrongful presence there. Under such circumstances the negligent act of Sibley, concurrently with Mallahan's negligent act, was the proximate cause of the plaintiff's damage. In view of this finding by the court, it is unnecessary to pass upon the question of whether one passing an obscured stop sign is negligent as a matter of law. The court has been unable to find any Connecticut cases exactly in point. There is, however, a note in 6 Current Legal Thought, p. 164, which seems to incline towards the theory that a driver is not bound for the consequences óf his failure to see an obscured stop sign, the presence of which was unknown to him. In case No. 32821 judgment may be entered against both defendants in favor of the plaintiff Margaret C. McGrath to recover the sum of $117.55 and in favor of the plaintiff Hugh E. Mulhern to recover from both defendants the sum of $750 and costs. In case No. 32923 judgment may be entered for the plaintiff to recover from the defendant Sibley the sum of $600 and costs.

Memorandum of decision on motion to erase. MUNGER, J. The record discloses that commissioners were appointed to hear the disputed claim of Joseph T. Anquillare. This claim was allowed in the amount of $361.10. The probate court accepted the report of the commissioners and it was ordered on record on August 21, 1942. Thereafter the plaintiff administratrix moved an appeal from, the doings of the commissioners. An' inspection of the record discloses that this was expressed in the following terms: "Wherefore the Subscriber moves an appeal and does hereby appeal from the doings of said commissioners and from their said report in allowing said claim to the Superior Court, etc." A bond was given in the sum of $140 dated the same day, September 10, 1942, but the obligation of the bond was to prosecute to effect an appeal from the order of the probate court. The bond was as follows: "Appeal from the order of the Probate Court made on the 21st day of August, 1942, allowing the claim of Joseph T. Anquillare." The record also discloses that the appeal was allowed from the order of the probate court accepting the report of the commissioners. It clearly appears, therefore, that although the plaintiff did appeal from the doings of the commissioners such appeal was never in fact allowed by the probate court nor was such a bond upon such an appeal ever given. For all that appears the plaintiff might have taken two appeals, one from the doings of the commissioners and one from the order of the court accepting the report. In Bennett's Appeal from Probate, 33 Conn. 214, it was held that an appeal taken from the decree of the probate court accepting the report of the commissioners instead of an appeal from the doings of the commissioners "can not be reviewed upon an appeal from the decree of the probate court accepting the commissioners' report, but only on an appeal taken directly from the doings of the commissioners." The distinction between these two proceedings is clearly explained in a note in Donahue's Appeal, 62 Conn. 370, 376, and this note is mentioned in Pettee vs. Hartford-Connecticut Trust Co., 105 Conn. 595, 609. It is obvious that the record does not disclose that any bond was given on the appeal from the doings of the commissioners. In Donahue's Appeal, supra, there was an appeal taken from a claim presented by the appellant which was disallowed by the commissioners and also from the order of the court accepting their report. As before stated we have no means of knowing that the bond and the appeal allowed as appears by the present record was not in another appeal. Certainly it does not appear that the bond required was given. A special appearance has been entered and therefore the motion to erase must be granted.

Memorandum of decision on demurrer to complaint. O'SULLIVAN, J. This action was brought by the plaintiff trustee against William J. Cox of Hartford who was not otherwise described in the writ. The complaint attempted to allege a cause of action against him in his representative capacity as Highway Commissioner of the State of Connecticut. To this complaint a demurrer was filed challenging the plaintiff's right to sue the defendant in his individual capacity. Before the demurrer was passed on, the plaintiff filed a pleading entitled "Amended to complaint", though the intended effect was to amend the writ and not the complaint. The pleading will be construed, then, as amending the former. The defendant has likewise so recognised it for he has super-ceded his demurrer by filing another from which has been eliminated the question above referred to. The complaint alleges these facts: The plaintiff owns a parcel of land in the Town of Trumbull which fronts on, and prior to May 22, 1939, was substantially level with Madison Avenue, a highway that the defendant is charged with the duty of constructing and maintaining. Some time after the above-mentioned date, the defendant raised the grade of the highway to the great damage of the plaintiff. Although the change of grade was completed in October, 1939, the defendant has neglected to assess the damages or benefits resulting therefrom although ample time has elapsed to permit him to institute such proceedings. The relief sought is $5,000 damages.- The demurrer, which, while somewhat general, is sufficient to present the question desired to be -raised, states that "the complaint fails to set forth any state of facts under which' the defendant, as Highway Commissioner, was under any duty to the plaintiff to make an award of damages or benefits to the plaintiff for the change of grade set forth in the complaint." At common law, no liability resulted from changing the grade of a highway. Downs vs. Ansonia, 73 Conn. 33, 37. Those charged "with the maintenance of public highways may change the grade of streets and highways from time to time, as the wants of the public may require, without being liable for the incidental and necessary damage caused thereby to the adjoining proprietors." Healey vs. New Haven, 47 Conn. 305, 313. The Legislature has changed this but only in so far as to make liable for damage resulting from changes of grade towns, cities, boroughs, and corporations, "whether acting by authorF ty or direction of the public utilities commission or otherwise." (Gen. Stat. [1930] §1438.) The Highway Commissioner is not included therein. As to him the common law is still applicable. A change of grade does not amount to the taking of land. Nicholson vs. N. Y. & N. H. R. Co., 22 Conn. 74; Fellowes vs. New Haven, 44 id. 240; Gilpin vs. Ansonia, 68 id. 72. The defendant, then, in changing the grade of Madison Avenue was under no obligation to assess benefits and damages. Munson vs. MacDonald, 113 Conn. 651, 658. See, also, Orange Hills Country Club, Inc. vs. Orange, 8 Conn. Sup. 447. The complaint fails to allege a good cause of action and the demurrer must be sustained.

Memorandum of decision in action for wrongful death. O'SULLIVAN, J. On February 4, 1941, about an hour after sundown and when darkness had fallen, one of the de fendant's employees was operating a tractor southerly through the township of Glastonbury over a public highway known as Route No. 2. He had reached Dickinson Hill, so-called, a respectable grade, up which the tractor was very slowly climbing. The paved concrete portion of Route No. 2 was 18 feet in width and at the point where the hereinafter related events occurred, it was flanked on either side by approximately six foot shoulders which fell away as they receded from the concrete. Previously fallen snow partially covered the shoulders but none was on the paved portion of the highway. The tractor was hauling a low, platform trailer on which was a 55 ton crane, whose long steel boom hung in a substantially horizontal position well out over the rear. The crane was equipped with caterpillar treads so far apart, one from the other, that while the platform was capable of accommodating the crane's cab and machinery, each caterpillar extended out and hung down from the side of the trailer so that a matter of probably six inches separated the bottom of the treads from the ground. From the outside edge of one caterpillar to that of the other was two inches short of 12 feet. While two lighted red lanterns hung from the boom, neither was visible to traffic headed northerly, as the large cab of the crane blocked the view. On each side of the trailer was a reflector and four red tail lights were in operation. A red lantern hung from each side of the crane's cab in such a position as to be about four feet from the ground and almost three feet from the outside edge of the caterpillar. Nothing was on the trailer in the nature of an illuminated warning to indicate that beyond these last mentioned lights, two caterpillars, each being two feet 11 inches wide and 15 feet long, extended out from either side of the trailer, to the operators of oncoming vehicles, the main, if not the only visible lights were those from the headlights and from three small lights set in an arc over the driver's cab, two being amber in color and the other one green. Headed northerly at this time and place, and moving at a speed of 35 to 40 miles per hour, was a Plymouth sedan operated by George Anderson, the plaintiff in a companion action. Three passengers were with him, one sitting at his side, and Remeo La Brie and another on the back seat. All four were homeward bound to Hartford from their daily work on a construction job in Groton. As Anderson approached the tractor, he saw its front lights but there was nothing to indicate to him that an unusually large object was headed his way or that the caterpillar of a crane was beyond the center line and partially blocking his half of the highway. The in' evitable occurred. As the Plymouth was passing the trailer, its left front collided with the caterpillar, causing the sedan to slue around, counter'dockwise, and almost instantly to come to a stop on its four wheels on the same side of the highway upon which it had been traveling, but headed at right angles to approaching traffic. La Brie was hurled, in some unex' plained fashion, out of the car to the pavement and lay there unconscious. The 'passenger in the front seat was thrown to the floor. Anderson remained behind the wheel, stunned and disoriented. The other passenger got out of the car and wan' dered about aimlessly. In the meantime, the tractor had stopped and its operator sent a helper to the disabled men. Just about this time, two automobiles approached, one from the north, the other from the south. The driver of each, after sensing the need for assistance and after 'some of his passengers had left the car, turned' around to seek aid and to summon the authorities. Just why the several persons who arrived or were at the scene failed to get Anderson and the other out of the car or to remove the prostrate form of La Brie from the concrete will remain a mystery. Probably they did not see the uncom scious man on the highway, for it was very dark, save where the headlights shone. And it is equally probable that they failed to realize, after speaking to Anderson and receiving re' plies from him, that he was still completely dazed and unable to appreciate the danger of his remaining in his automobile. But all of this is indulging in observations made from the vantage point of hindsight. At any rate, at least two minutes and perhaps one or two more elapsed after the collision when a third automobile neared the scene from the south. It was driven by one Kaufman and was traveling at about 45 miles an hour. He, too, saw, as had Anderson, the front lights of the tractor. He managed to pass the trailer without colliding with the caterpillar but he did not see the Anderson car blocking his path until its left side suddenly loomed up before him at a distance too short to avoid the terrific crash that followed. The Plymouth was shoved ahead and over La Brie, as he lay on the concrete, causing him mortal injuries from which he died three days later. The foregoing will sufficiently background the obvious question which immediately suggests itself and whose answer is determinative of liability: was the defendant's negligence the proximate cause of La Brie's death? I put the query in this form because the facts can justify no other conclusion than that the negligence of the defendant was the sole cause of the first collision. To haul such a huge object as was this crane, with a part of it partially blocking the half of the high' way which Anderson had the right to use, with an absence, at this dark spot, of any type of illumination to indicate the overhang of the crane, spells out negligence in capital letters. And in passing, it should be observed that no negligence of Anderson, and still less of La Brie, had any connection with either the first or the second crash. Whether the defendant's negligence was a proximate cause of La Brie's death presents*a problem for the trier to solve. It is often referred to as the finding of a fact. Nichols vs. Watson, 119 Conn. 637, 640; Boileau vs. Williams, 121 id. 432, 439; Cuneo vs. Connecticut Co., 124 id. 647, 651. But whether it be a conclusion or a fact, the reasoning which I have pursued may be expressed as follows: The original negligent conduct of the defendant was solely responsible in the legal sense for the first crash. Had Kaufi man not come along, the effects of that crash would have been of relatively minor importance. Actually, those effects were twofold. In the first place, four persons were physically harmed, and in the second place they were all thrown into a position of appreciable risk from which three never did escape. In other words, the defendant's negligence resulted not only in causing minor physical injuries but also in creating a condi' tion fraught with additional peril to _ their safety. This con' dition was, so to speak, static and the complete results of the original act of negligence were unascertainable until the risk from normal events arising out of that condition had been eliminated. Not that the defendant would necessarily be liable for all consequences that occurred while the risk re' mained alive. If a superceding human agency caused new injuries to these men who had been thrown into a 2;one of danger, the defendant's primary negligence would lose the required characteristics of being a substantial factor in producing the additional injuries. The simultaneousness of a new cause with the negligence of the defendant is not the controlling factor. To be sure, it is an important element in determining whether the prior negligence is a remote rather than a proximate cause. Corey vs. Phillips, 126 Conn. 246, 256. However, if prior negligent conduct has resulted in producing a static condition, though that negligence is not simultaneous with the negligence of another which results in injury to a plaintiff, the former may still be a proximate cause of the accident. Kinderavich vs. Palmer, 127 Conn. 85, 96. The vital question, then, is whether Kaufman's participation, as an intervening independent cause, supercedes the prior negligence of the defendant. I am satisfied it did not, even on the assumption that Kaufman was negligent. There is a direct causal relation between the negligence of the Hall Company and La Brie's death. That the act of another entered to complete the catastrophe did not break the chain of causation leading from the former to the latter. Indeed, the pe.ril into which the defendant's negligence threw La Brie required'the intervening act of a third person to consummate the second collision. It was the risk of the very thing that happened which the defendant caused. "The injury resulting from the breach of duty need not be the direct or immediate result of the wrongful act; if it is probable and a natural result, that is according to the operations of natural laws, it is enough. . . .The mere fact that the act of another person concurs, cooperates or contributes, in any degree whatever in producing the injury, is of no consequence." If the chain is to be deemed broken, the intervening cause, whether intelligent or not, must so entirely supercede the operation of the defendant's negligence that it alone produces the injury, or it must be the non-concurring culpable act of a human being who is legally responsible for such act. Lombardi vs. Wallad, 98 Conn. 510, 517. Neither alternative recited in the above excerpt is present in the instant case. It follows that the second collision was the result of an intervening but not a superceding c.ause, and for all the consequences of both crashes, the defendant should be held liable. La Brie was 46 when he died. His life expectancy was almost 24 years. He was married and his work was that of a labor foreman. His weekly base pay was $40, but due to overtime he had earned $2,271.75 during 1940. The inventory of his estate showed a gross of $6,887.72 from which both ante and post mortem allowable claims amounting to $946.78 must be paid. He was an efficient workman and a man of good health and frugality. The economic loss his estate has suffered is determined to be the sum of $12,500. La Brie did not die until February 7th. He suffered no pain after the collision because of his unconscious condition. There were, however, certain ante mortem items of damages to which the plaintiff is entitled. These items follow: Hartford Hospital . $105.50 Thacher W. Worthen, M.D..... 150.00 William B. Scoville, M.D....... 15.00 Nurses .,............... 70.00 Total . $340.50 Let judgment enter for $12,840.50 against the defendant

Memorandum of decision on demurrer. O'SULLIVAN, J. The complaint alleges these facts: The defendant owns a tract of land known as No. 12 Buckingham Place in the Town - of Norwalk, more particularly described as Lots Nos. 37 and 38 on a map of Lockwood Ridge on file in the office of the town clerk of Norwalk. On October 6, 1941, the plaintiff notified him that he was prepared to take title to the tract in conformity with the terms of Exhibit A, annexed to and made part of the complaint. This exhibit reads: "Norwalk, Connecticut, August 29, 1941. I, James C. McCarthy, the owner of a piece of property known as No. 12 Buckingham Place, hereby give to Emanuel Martin Steinlauf the option to purchase my property as above located, for and in consideration of the sum of $200.00 and other valuable considerations, and the balance of Eight Hundred ($800.00) Dollars on or before 90 days from the above date. "I will deliver this property free and clear of all incumbrances with the exception of (1) a certain mortgage for five thousand ($5,000.00) dollars given to the Wakeman Title and Mortgage Company of Fairfield, as per record, which the buyer will assume. (2) The buyer will also assume and agree to carry out a certain lease to a Mrs. Johnson for a period of two years, as now on record in the Town Clerk's Office in Norwalk. Otherwise, this property is to be conveyed free and clear of all incumbrances. Signed, James C. McCarthy. Witnessed by: Harry Gordon, Sam Dorsey." The plaintiff has at all times since October 6, 1941, been ready, able and willing to carry out his part of the agreement, but the defendant has continually refused to convey the tract. The defendant has demurred to the complaint and alleges various grounds, all of which stem from the statute of frauds. The requirements of a memorandum of sale to satisfy the statute are well established by many decisions. "It must state the contract between the parties with such certainty that the essentials of the contract can be determined from the mem' orandum itself without the aid of parol proof, either by dfi rect statement or by reference therein to some other writing or thing certain; and these essentials must at least consist of the subject of the sale, the terms of it and the parties to it, so as to furnish evidence of a complete agreement." Santoro vs. Mack, 108 Conn. 683, 687. Whatever merit there may be to the other grounds of demurrer, that which challenges the sufficiency of Exhibit A be' cause of the uncertainty of the words "and for other valuable considerations" is sound. Unless parol evidence is resorted to, it is utterly impossible to know what the parties were agreeing to when those words were included. For aught that appears to the contrary, the considerations they intended as a partial support for the agreement could have been the giving by the plaintiff to the defendant of a diamond ring, or any one of the countless articles that come to mind. Or perhaps, the valuable considerations were a series of promises made by the plaintiff, requiring him to perform various acts of value to the defendant. One just cannot know what the considera' tions were. This leads to that uncertainty in the terms of sale against which the statute provides. In my judgment, the agreement is vitally deficient in this respect and the demurrer must, therefore, be sustained on that ground.

Memorandum of decision on demurrer to counter claim. FITZGERALD, J. By writ, summons and complaint dated March 16, 1942, and returned to this court on the first Tues^ day of April, 1942, plaintiff, as administrator d.b.n. on the estate of Wendell P. Allgor, late of Bridgeport, brings this action to recover a deposit of $400 alleged to have been paid by his decedent to defendant when a written lease was em tered into on or about November 7, 1938. Plaintiff, as such administrator, claims (1) $500 damages; (2) a refund of said deposit of $400; and (3) such other relief warranted by justice and equity. Defendant in its answer has included a counterclaim for damages in the amount of-$1,500 based upon alleged acts of waste allowed and permitted on the leased premises by plain' tiff's decedent, his servants, agents and employees, contrary ta and in violation of a provision in the lease itself. The counterclaim thus interposed is productive of plaintiff's demurrer and forms the subject of this memorandum. The sole ground of the demurrer is that the counterclaim, as such, "contains no allegation that any claim against the estate of Wendell P. Allgor has ever been presented to the administrator for the purported damages alleged therein as in such case is required by statute." By statutory mandate creditors of the estate of a deceased person (being probated as a solvent estate) are to exhibit their claims against such estate to the executor or administrator thereon within the time fixed by the court of probate. (Gen. Stat. [1930] §4914.) Also, such claims are to be in writing. (4915.) A creditor whose claim has been disallowed in whole or in part by an executor or administrator of a "solvent estate" may commence a suit within four months after written notice of a total or partial disallowance of his claim shall have been given by the executor or administrator (§4918), or such creditor may within one month after notice of such disallowance apply to the court of probate for the appointment of commissioners to pass upon the merits of the claim that was disallowed in whole or in part (§4920.) Defendant's counterclaim does not allege that the claim upon which it is predicated was exhibited and presented in writing to plaintiff in his representative capacity and disallowed in whole or in part. If the estate in question is solvent, presen' tation of a claim such as that which forms the basis of de' fendant's counterclaim is a condition precedent to recovery. In Grant vs. Grant, 63 Conn. 530, the Supreme Court said (p. 546): "Such presentation is essential, and a condition precedent to legal recovery against a solvent estate. The ob' ject of the statute making it requisite, is apparent. It is 'to enable the administrator to perform his duties. . . .In the first instance the administrator must pass upon all claims against such estates. He is not presumed to know what they are, and in a great majority of cases he cannot know, until they are-presented to him by the creditors.' Pike v. Thorp, 44 Conn 453. The law, therefore, has made it as essential to a claim ant's right of recovery of a legal claim, in a higher court, against a solvent estate, that it should be first presented to the executor or administrator, and an opportunity given him to examine and pass upon it, and to allow or disallow it, as it is that such a claim against an estate represented insolvent, should be pre' sented to the commissioners upon such estate, for their action." The Grant case was before the Supreme Court in 1893. The last 50 years has not resulted in a different statement of the rule. For reasons which are obvious, the court assumes that the estate in question is a solvent estate. Defendant argues that the subject matter of its styled "counterclaim" in reality relates to, and is, a "set-off." Its counsel stated in oral argument that defendant is only interested in offsetting, or striking a balance between, any amount that might be found due the plaintiff on his complaint and not in recovering a judgment in excess of any such amount. The short answer to this argument is that defendant under its styled "counterclaim" has asked for damages in the amount of $1,500, thereby exceeding plaintiff's demand. On demurrer it is the written pleadings that the court considers and not oral amendments and qualifications- thereto. The fact that defendant styles its pleading in which it claims damages as "counterclaim" rather than as "set-off" is not too important. See Boothe vs. Armstrong, 76 Conn. 530, 533. It is obvious that defendant wants the court to treat its demand as being in the nature of "recoupment." As was said in Boothe vs. Armstrong, at p. 532: "In set-off [and counterclaim for that matter} the defendant might have a judgment for an excess of his claim over that of the plaintiff: in recoupment he could not." In any view of the matter "recoupment" is not a "counterclaim" or "set-off" within the meaning, of statutes relating to pleading. See Orsi vs. Hall. 8 Conn. Sup. 92, 96. The court necessarily takes the pleadings as they are and does not revamp them to suit the fancy of counsel. Defendant also urges upon the court for acceptance the case of Berrigan vs. Pearsall, 46 Conn. 274, as authority for" the proposition that failure to present a claim to an administrator within the time limited by the Court of Probate for presentation of claims does not bar a claimant thereafter from availing himself of a set-off in an action subsequently brought by the administrator to recover a sum alleged to be due the estate arising out of a right transmitted by the decedent to his representative. The court makes three observations in rejecting the Berrigan case as controlling: (1) the amount due defendant therein from the deceased Hennelly was liquidated ($300 less $118.09 due Hennelly in his lifetime from defendant) ; (2) Hennelly's estate was in course of settlement as an insolvent estate as distinguished from a solvent estate; (3) the plaintiff in the action was not the administrator of Hennelly's estate suing to recover for the benefit of the estate. Cases cited in the footnotes of 1 Cleaveland, Hewitt & Clark, Probate Law & Practice (1926) §218, pp. 277-279 (in cluding the Berrigan case, supra, under note 139, p. 279) are distinguishable on many grounds. Plaintiff's demurrer is well taken. 1 Cleaveland, Hewitt & Clark, Probate Law & Practice, supra, §224, p. 288; Raymond vs. Bailey, 98 Conn. 201, 209. For reasons stated, the demurrer is sustained.

O'Connell, J. The defendant appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), assault of a victim sixty or older in the first degree in violation of § 53a-59a (a) and 53a-59 (a) (3) and robbery in the first degree in violation of General Statutes § 53a-134 (a) (l). The defendant was found not guilty of attempt to commit sexual assault in the first degree in violation of General Statutes § 53a-70 (a) and 53a-49 (a) (2) and of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A). The defendant claims that the trial court improperly (1) admitted evidence under the constancy of accusation exception to the hearsay evidence rule, (2) admitted exhibits into evidence despite a defective chain of custody, and (3) marshaled the evidence against the defendant. The defendant also claims that the evidence was insufficient to prove the element of serious physical injury beyond a reasonable doubt as required by General Statutes § 5Sa-134 (a) (1). We affirm the judgment of the trial court. The jury could reasonably have found the following facts. At approximately 7:45 p.m. on January 4,1990, the doorbell rang at the Enfield home of the seventy year old victim. An exterior light over the door afforded the victim a clear look at the side of the defendant's face from a distance of eighteen to twenty-four inches. When the defendant failed to give a satisfactory reason for his presence, the victim told him she was going to call the police. She dialed the emergency 911 ntimber, but before she could determine whether the phone connection had been completed, the defendant broke down the door and lunged at her. He punched the left side of her face, then grabbed her by the ankles, thereby picking her up off the ground. She fell backward and lost consciousness. Upon regaining consciousness, she could not immediately stand because her slacks and underwear were below her hips. Her sweatshirt and lower torso were wet and she was bleeding from a cut on the back of her head. At this point, the police, who had heard screaming over the 911 telephone connection, arrived. They administered first aid and arranged for transportation to Saint Francis Hospital in Hartford. Before leaving for the hospital, it was discovered that the victim's wallet, containing $30 and credit cards, was missing. At the hospital, the victim discovered that the nipple of her left breast was partially torn. The hospital record contains the following entry: "Patient had been undressing for bed at the time and had unbuckled her bra. Upon awakening, her clothes were all intact but she had bleeding from left nipple. She does not believe she was sexually assaulted and injury to left nipple was from wire in bra. Presently, patient has no complaints." The hospital records were introduced as a defense exhibit pursuant to General Statutes § 4-104. Meanwhile, at the victim's house, the police continued their investigation with the assistance of a state police tracking dog. The dog's handler testified at trial concerning the route of a person whose footprints were found in the snow outside the victim's house. Although the defendant's residence was about 500 yards from the victim's house, the dog did not track in that direction — in fact, it followed a trail leading in the opposite direction. The police made plaster casts of the footprints. Three weeks later the casts were sent to the state forensic laboratory for comparison with boots that had been seized from the defendant's house pursuant to a search warrant. At the hospital, the victim told her daughter that she thought the defendant was her attacker. The daughter relayed this information by telephone to the Enfield police. Although at least two attempts at a photographic identification were inconclusive, a face-to-face show-up produced a positive identification of the defendant, who was then arrested. At trial, the defendant relied on an alibi defense that he was at home at the time of the incident. Additional facts pertaining to individual issues are included in the following discussion. I Constancy of Accusation The defendant first complains that the trial court improperly allowed testimony from both the victim's daughter and a detective under the constancy of accusation exception to the hearsay rule. The defendant contends that the exception was erroneously applied because the victim did not expressly testify that she had been sexually assaulted. The victim's daughter testified, inter alia, that her mother had named the defendant as her attacker. The police detective testified, inter alia, that the victim had told him that upon regaining consciousness she had found that her underwear had been pulled down around her hips and that a portion of her torso and clothing were wet. Under our constancy of accusation rule, a witness in a sexual assault case is permitted to testify concerning the victim's prior consistent statements about the assault and the identity of the attacker, provided the victim has first testified about the incident and has testified as to those persons whom she has told about the incident. State v. Rodgers, 207 Conn. 646, 649-50, 542 A.2d 1136 (1988). In the present case, the victim testified concerning everything that she knew about the incident and identified her daughter and the detective as the persons to whom she had reported these facts. The defendant argues, however, that the victim failed to testify from her own knowledge that she had been sexually assaulted and, therefore, the constancy of accusation exception to the hearsay evidence rule does not apply. The cause of the victim's lack of complete knowledge was the fact that she lost consciousness shortly after the assault began. A similar situation occurred in State v. Rodgers, supra, where the victim was rendered unconscious shortly after the attack commenced. The Rodgers court ruled that as long as a reasonable inference could be drawn that a sexual assault had occurred, the constancy of accusation exception applied because holding otherwise "would confer a benefit on defendants who render their victims unconscious during sexual assaults, and . . . thereby deprive the state of the ability to present constancy of accusation evidence as to the circumstances surrounding an alleged sexual assault." Id., 650. In the present case, the victim testified that early in the attack she fell to the floor, struck her head and lost consciousness. Upon regaining consciousness, her pants and underwear were down below her hips, her sweatshirt was wet and the nipple of her left breast was bleeding where it was torn. The trial court could reasonably have inferred that attempted sexual assault in the first degree or sexual assault in the third degree had taken place. The defendant next argues that the victim's statements in the hospital report, that she did not believe that she had been sexually assaulted, and that a wire in her brassiere had caused the torn nipple, mandate reversal. We do not agree. The hospital records were not before the court at the time of its ruling on the constancy exception. Further, upon admission of the records into evidence, the defendant did not move to strike the constancy testimony on this basis. Moreover, the victim's hospital statement is not inconsistent with the crimes charged. The fourth count charged the defendant with attempted, not completed, sexual assault in the first degree. A denial that she, in fact, had been sexually assaulted is therefore consistent with the charge of attempted sexual assault in the first degree. Finally, although the fifth count charged the defendant with sexual assault in the third degree, it is reasonable to assume that, as a person lacking knowledge of our criminal code, the victim did not know that the touching of intimate parts could constitute sexual assault in the third degree. The defendant also argues that this misapplication of the constancy of accusation rule allowed the state to put facts before the jury that it would not have otherwise heard. The only fact not included in the victim's testimony was the detective's statement that the victim's torso was wet. In view of the fact that the victim had testified that her sweatshirt was wet, however, we cannot conclude that the additional fact that her torso was also wet has material significance. Nor is the defendant's acquittal of the sexual assault counts significant. They were properly before the trial court when the evidentiary ruling on constancy of accusation was made. The trial court cannot be expected to forecast the outcome of the case. The trial court properly admitted the testimony of the victim's daughter and the detective into evidence under the constancy of accusation rule. II State's Exhibits A CHAIN OF CUSTODY The defendant next contends that the trial court improperly admitted the plaster casts of boot prints into evidence over the defendant's objection that a proper chain of custody had not been established. A detective testified that, on the night of the crime, he made plaster casts of boot prints that were found in the snow outside the victim's window. The detective wrapped the casts in newspaper and placed them in the evidence locker. About three weeks later, pursuant to a search warrant, a pair of boots was seized from the defendant's house. The detective gave instructions for the police department's civilian aide to take both the casts and the boots to the state police forensic laboratory for comparison. The detective also testified that the casts were in substantially the same condition at trial as when he had made them. The defendant objected to their admission on the ground that there had been no showing of the chain of actual care and custody of the casts from the time they were made until they were sent to the forensic lab. The state's burden is satisfied by showing that the exhibit is the actual item in question; see B. Holden & J. Daly, Connecticut Evidence (1988) § 91c; and that there is a reasonable probability that the item has not been changed in any important respect. State v. Greene, 209 Conn. 458, 479, 551 A.2d 1231 (1988). It is not necessary for every person who handled the item to testify in order to establish the chain of custody. It is sufficient if the chain of custody is established with reasonable certainty to eliminate the likelihood of mistake or alteration. State v. Burns, 23 Conn. App. 602, 614-15, 583 A.2d 1296 (1990). The trial court properly ruled that a sufficient foundation had been laid for the admission of the casts when the detective testified that there was no substantial change in the casts after they were made. B TAMPERING After the admission of the plaster casts into evidence, it came to light that the date on the newspaper in which the casts were wrapped was later than the date on which the officer testified he had originally wrapped them. The officer explained that when the boots were given to him, he rewrapped the casts and the boots together for transport to the lab. The defendant, however, raised no additional objection following disclosure of the rewrapping. Accordingly, for two reasons, we will not review the defendant's claim that the issue of the newspaper dates shows a probability of tampering. First, at best, it is only a claim of tampering with the wrapping and not a claim of tampering with the exhibit itself. Second, in the absence of an exception, the claim was not properly preserved. Because this is a claimed error in a discretionary evidentiary ruling, it is not entitled to Evans-Golding review. State v. King, 216 Conn. 585, 590, 583 A.2d 896 (1990). Ill Marshaling of Facts The defendant next argues that the trial court deprived him of his constitutional right to a fair trial by unfairly marshaling facts in favor of the state. "A trial court often has not only the right, but also the duty to comment on the evidence." State v. Hernandez, 218 Conn. 458, 461-62, 590 A.2d 112 (1991). "Fair comment does not become improper merely because it tends to point out strengths, weaknesses, or difficulties of a particular case." (Internal quotation marks omitted.) State v. Pollitt, 205 Conn. 132, 157, 531 A.2d 125 (1987). In marshaling the evidence, the court must be careful not to imply any favor or criticism of either side. State v. Hernandez, supra, 463. " 'The trial court may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing upon any point in issue and may comment upon the weight of the evidence so long as it does not direct or advise the jury how to decide the matter.' " State v. Shannon, 212 Conn. 387, 408, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d (1989). The test of a court's instruction is " 'whether, taken as a whole, [it] fairly and adequately presents] the case to a jury in such a way that injustice is not done to either party under the established rules of law.' " State v. Tatum, 219 Conn. 721, 734, 595 A.2d 322 (1991). The defendant's reliance on Hernandez is misplaced. In Hernandez, the defendant's conviction was reversed because the trial court detailed the state's evidence and commented favorably on the credibility of the state's witnesses, but made only a slight reference to the defendant's exculpatory evidence or to his theory of defense. State v. Hernandez, supra, 464. By contrast, the trial court here, detailed the defendant's theories of defense, (i.e., alibi, absence of sexual assault and unreliability of identification) and outlined the evidence supporting these defenses. In addition, the court properly instructed the jury on evaluating identification and expert testimony. As part of his improper marshaling argument, the defendant further argues that the trial court made only "fleeting reference" to the hospital report that contained the victim's comment that she did not feel that she had been sexually assaulted. Insofar as the claimed improper treatment was relevant to the sexual assault counts, such a claim is now moot because the defendant was acquitted on these counts. Insofar as it is relevant to the "serious physical injury" element of the robbery and assault counts, we conclude that, viewing the charge in its entirety, the two references to the report in the jury charge did not mislead or improperly influence the jury. State v. Shannon, supra; State v. Owens, 25 Conn. App. 181, 191, 594 A.2d 991, cert. denied, 220 Conn. 910, 597 A.2d 337 (1991). IV Sufficiency of Evidence The defendant's final claim is that the evidence presented at trial was insufficient to convict him of robbery in the first degree and assault of a victim sixty years or older in the first degree. The defendant's argument focuses on the "risk of death" and the "serious physical injury" elements of these crimes. "In reviewing the sufficiency of the evidence, an appellate court, first, must examine the evidence presented at trial in the light most favorable to sustaining the verdict . . . and, second, must determine whether, when considered in that light, the evidence could have led a jury to conclude beyond a reasonable doubt that the defendant was guilty." (Citations omitted.) State v. Aleksiewicz, 20 Conn. App. 643, 646-47, 569 A.2d 567 (1990). In the present case, the victim lost consciousness after the defendant lifted her by her ankles, thereby causing her to fall to the floor. When she regained consciousness, she found blood running from a deep laceration in the back of her head, abrasions to the left side of her face and back, and an injury to the nipple of her left breast. These injuries caused her pain and she was taken to Saint Francis Hospital where she was treated in the emergency room and discharged. Staples were used to close the wound to her head, and it was necessary to remove surgically the tom portion of the injured nipple. The second count of the information charged the defendant with assault of a victim sixty years or older in the first degree by virtue of having committed assault in the first degree in violation of General Statutes § 53a-59 (a) (3). To establish guilt beyond a reasonable doubt under this subsection of the statute, the state must prove that under circumstances evincing an extreme indifference to human life, the defendant recklessly engaged in conduct which created a risk of death to the victim and thereby caused serious physical injury to her. The risk of death element of the statute focuses on the conduct of the defendant, not on the resulting injury to the victim. The statute does not require that the vic tim was in fact at a risk of death. The issue is whether grabbing a seventy year old woman by the ankles and picking her up so that she is thrown against an object causing a head laceration and unconsciousness is reckless conduct that creates a risk of death. The jury could properly infer that this constituted reckless conduct that created a risk of death to the victim. We cannot substitute our judgment for that of the jury. State v. Almeda, 211 Conn. 441, 450, 560 A.2d 389 (1989). We next consider whether the state has proven that the victim suffered serious physical injury, which is an element common to both the robbery and assault charges. " 'Serious physical injury' means physical injury which creates a substantial risk of death or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ. '(Emphasis added.) General Statutes § 53a-3 (4). Whether a victim has suffered serious physical injury is a question of fact for the jury. State v. Graham, 21 Conn. App. 688, 717, 575 A.2d 1057, cert. denied, 216 Conn. 805, 577 A.2d 1063 (1990). Although our case law apparently does not require expert medical testimony to establish the element of serious physical injury, there must be sufficient direct or circumstantial evidence or a combination of both presented to the jury from which it may find such injury. The prosecution and the trial court both relied on the victim's unconsciousness after she had fallen to the floor to satisfy the serious injury requirement. In the assault instruction, the trial court told the jurors that it was up to them "to determine from your common experience whether or not [the unconsciousness] was a serious impairment of a bodily organ." (Emphasis added.) In the robbery instruction, the trial court charged the jury that "it may be inferred that . . . by a loss of consciousness there is an impairment of the function of the brain, an organ of the body." (Emphasis added.) It is axiomatic that it is the function of the jury to consider the evidence, draw reasonable inferences from the facts proven and to assess the credibility of witnesses, and it is the duty of this court to view the evidence in the light most favorable to upholding the verdict. State v. Avcollie, 178 Conn. 450, 461, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980). The statute does not require that the impairment of the organ be permanent. The jury could properly interpret the evidence to prove that the victim's brain was not functioning at a cognitive level when she was unconscious and thus was impaired. "Despite the difficulty of drawing a precise line as to where 'physical injury' leaves off and 'serious physical injury' begins, in light of the evidence concerning the extent of [the] injuries [sustained by the victim here], we cannot say as a matter of law that the jury could not reasonably have found that [she] suffered 'serious physical injury.' " State v. Miller, 202 Conn. 463, 489, 522 A.2d 249 (1987). The serious physical injury element was satisfied and consequently there was sufficient evidence presented at trial to convict the defendant of robbery in the first degree and assault of a victim sixty or over in the first degree. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 53a-101 (a) provides in pertinent part: "A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and . (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone." General Statutes § 53a-59a (a) provides: "A person is guilty of assault of a victim sixty or older in the first degree, when he commits assault in the first degree under section 53a-59 (a) (2) or 53a-59 (a) (3) and the victim of such assault has attained at least sixty years of age or is blind or physically disabled, as defined in section 1-lf." General Statutes § 53a-59 (a) provides in pertinent part: "A person is guilty of assault in the first degree when . (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." (Emphasis added.) General Statutes § 53a-134 (a) provides in pertinent part: "A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime . . . ." General Statutes § 53a-70 (a) provides in pertinent part: "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 . . . ." 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-72a (a) provides in pertinent part: "A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person . . . . " General Statutes § 53a-65 (3) provides: " 'Sexual contact' means any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person or any contact of the intimate parts of the actor with a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person." General Statutes § 53a-65 (8) provides: " 'Intimate parts' means the genital area, groin, anus, inner thighs, buttocks or breasts." State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). See footnote 3, supra.

The defendant's petition for certification for appeal from the Appellate Court, 31 Conn. App. 696 (AC 11273), is denied.

Callahan, J., The dispositive issue in this appeal is whether the trial court properly instructed the jury that, during the course of its deliberations concerning greater and lesser included offenses, it must unanimously agree to acquit of the greater offense of murder before it could go on to consider the lesser included offenses of manslaughter. The defendant, Bernard K. Sawyer, was charged in a substitute information with the crime of murder in violation of General Statutes § 53a-54a. After a jury trial, he was convicted of the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). He was sentenced to a term of imprisonment of twenty years. Following his conviction, the defendant appealed to the Appellate Court. In State v. Sawyer, 29 Conn. App. 68, 614 A.2d 471 (1992), the Appellate Court reversed the defendant's conviction and ordered a new trial. We granted the state's petition for certification to appeal to this court from the decision of the Appellate Court; State v. Sawyer, 224 Conn. 917, 617 A.2d 172 (1992); limited to three issues. Because we disagree with the Appellate Court's decision regarding the first certified question, it is unnecessary to address the other two. The first question is: "(1) Did the Appellate Court violate this court's express requirements of State v. Aparo, 223 Conn. 384, 388 [614 A.2d 401] (1992), State v. Daniels, 207 Conn. 374, [542 A.2d 306] (1988), and State v. Stankowski, 184 Conn. 121 [439 A.2d 918] (1981), that Connecticut juries render unanimous verdicts, when it adopted a jury instruction which permits a jury to render a verdict on a lesser included offense when [it is] 'unable to agree' on the greater offense?" Id. We conclude that it did and reverse the judgment of the Appellate Court. The Appellate Court accurately concluded that the jury could reasonably have found the following facts. "On February 17,1989, the defendant was in his apartment when he was surprised by the arrival of his girlfriend, Ernestine Watkins. Also at the apartment were the victim and Franklin Damon. After Watkins had hugged and kissed the victim, she asked him for a ride. The defendant followed them and got into the back seat of the victim's automobile. Watkins refused to get into the car and told the defendant, with whom she was angry, not to go with her, and that he should remain behind while she went to visit her uncle. The defendant then exited the car and the victim left with Watkins. "After waiting for more than an hour for Watkins to return, the defendant walked to a bar to look for her. At the bar, he observed someone hide a package near a dumpster. He retrieved the package and discovered a .357 magnum pistol that contained a live round in the chamber. He kept the gun and continued his search for Watkins. Upon learning that she had not visited her uncle, the defendant returned home. A short time later he observed the victim's car, with the victim in the driver's seat and Damon in the front passenger seat. He jumped into the back seat demanding to know where Watkins was. After the victim told him that she would return shortly, the defendant demanded that the victim drive him to where Watkins was. When the victim refused, the defendant put the gun to the back of the victim's neck, and pulled back the hammer. The victim again refused, stating that he had promised to give Damon a ride home. The victim bowed his head slightly and the gun discharged, sending a bullet through his left carotid artery and killing him. "Immediately after the gun discharged, the defendant said, 'Oh my God, what have I done, I didn't mean to do it,' and ran from the scene. He turned himself in to the police the following day and handed over the weapon used in the crime." State v. Sawyer, supra, 29 Conn. App. 70-71. At trial, both the state and the defendant offered evidence on the issue of whether the defendant had intentionally applied pressure to the gun's trigger. Final arguments similarly focused on whether the killing of the victim had been intentional.- Before final arguments, the defendant filed a request that the court instruct the jurors that "if they find that the elements of murder have not been proven beyond a reasonable doubt, or if they are unable to agree unanimously that the elements of murder have been so proved, they may then consider whether the defendant is guilty of the lesser included offense of manslaughter in the first degree and/or manslaughter in the second degree." (Emphasis added.) The court did not instruct the jury pursuant to the defendant's request. Rather, after charging on the essential elements of murder, the court advised the jury to consider the lesser included offenses of manslaughter only if it came to the conclusion that the state had failed to prove the elements of murder beyond a reasonable doubt. The court then instructed the jury as to the essential elements of the two lesser included offenses of manslaughter, namely, manslaughter in the first degree in violation of § 53a-55 (a) (3) and manslaughter in the second degree in violation of General Statutes § 53a-56. After doing so, the court reasserted the sequence to be followed by the jury in its deliberations, restating to the jury that it should consider the lesser included offense of manslaughter in the first degree only if it came to the conclusion that the defendant was not guilty of murder and should consider the lesser included offense of manslaughter in the second degree only if it came to the conclusion that the defendant was not guilty of manslaughter in the first degree. The defendant took an exception to the court's refusal to give his requested charge. Thereafter, during its deliberations, the jury sent a note to the court. The note read: "With no unanimous decision on the charge of murder or manslaughter in the first degree, but unanimous as to guilty on one count or the other, please advise." The court discussed with counsel for the state and the defendant the proper instruction to be given to the jury in response to the note. It was the court's view that it must instruct the jury that, if it could not reach a unanimous agreement to acquit the defendant of the charge of murder, it could not proceed to consider the lesser included offense of manslaughter in the first degree and the court would have to declare a mistrial. The defendant disagreed. After its discussion with the parties, the court brought the jury into the courtroom and instructed it as follows: "Well, I'm just going to make this brief statement to see if it helps you out. That in the sequence of events in your decision as to the charges that I gave to you the other day, of murder, manslaughter in the first degree or manslaughter in the second degree. The first thing that you must determine is on the charge of murder. Now, you have to come to a unanimous decision on that charge of either guilty or not guilty. And, obviously, if you found your verdict were guilty then you, obviously, wouldn't go to any lesser included offense. "You'd have to have unanimous decision of not guilty on the charge of murder before you then started to consider the charge of manslaughter in the first degree and thereon. So, you've got to come to decision first of all, unanimously, one way or the other on the charge of murder before you at all consider the lesser included offense of manslaughter in the first degree. And, again, I am not referring to manslaughter in the second degree because that is not included in your note. "So, if it helps you out at all, again, you have to come to a decision on the crime as charged, murder, before you go to the lesser included offense of manslaughter. It has got to be unanimous, either guilty or not guilty on the charge of murder before [you go on]. And, obviously, if it were guilty to murder you don't go to man slaughter in the first degree. So, in order to get to manslaughter in the first degree you must, unanimously, obviously, find the defendant not guilty of murder. And if you can't do that then send me a note and I'll see what else I can tell you." The jury subsequently acquitted the defendant of murder and convicted him of the lesser included offense of manslaughter in the first degree. The verdicts were unanimous. Following his conviction, the defendant appealed to the Appellate Court, claiming that the trial court had improperly instructed the jury that it had to be unanimous in its verdict on the greater offense of murder before it could consider the lesser offense of manslaughter in the first degree. After an initial oral argument before the Appellate Court, that court ordered supplemental briefing and reargument en banc on the issue of the proper jury instruction to be given by the trial court if the crime with which the defendant is charged requires an instruction on lesser included offenses. Before the Appellate Court, the defendant claimed that the trial court had improperly given an acquittal first transitional instruction, i.e., that the jury was incorrectly instructed not to consider the lesser included offenses until it had unanimously found the defendant not guilty of the greater offense of murder. The defendant argued that the proper instruction to guide the jury in its transition from the greater offense to lesser included offenses is a reasonable efforts instruction, which would have allowed the jury to consider lesser included offenses if it was unable to agree on the greater offense so long as it had made a reasonable effort to agree on the greater offense. The Appellate Court, by a five to two vote, after having considered the merits of both the acquittal first and the reasonable efforts instructions, rather than cast its lot definitively with either instruction, adopted what it termed the "optional approach" articulated by the Second Circuit Court of Appeals in United States v. Tsanas, 572 F.2d 340, 346 (2d Cir.), cert. denied, 435 U.S. 995, 98 S. Ct. 1647, 56 L. Ed. 2d 84 (1978). State v. Sawyer, supra, 29 Conn. App. 74. This optional approach postulates that neither instruction is wrong as a matter of law, that the defendant can request either instruction, and that the court is bound to honor the defendant's request. Because the defendant in this case had requested a reasonable efforts instruction and the trial court had refused his request, the Appellate Court concluded that in the "interests of justice" it must reverse the defendant's conviction of manslaughter in the first degree and order a new trial. Id., 76. This appeal followed. The state argues that because unanimity is required for all criminal verdicts, the trial court properly instructed the jury that it must unanimously agree to acquit the defendant of the greater offense of murder before it could consider any lesser included manslaughter offenses. The state contends, therefore, that the Appellate Court was incorrect when it concluded that the trial court, at the defendant's option, should have given an instruction that would have allowed the jury to consider the lesser included offense of manslaugh ter in the first degree before it reached a unanimous agreement to acquit the defendant of the charged crime of murder. The issue of what instruction should guide the jury's deliberations to assist it in making the transition from consideration of the greater offense to consideration of one or more lesser included offenses has never been directly addressed by this court. Under case law, however, "[i]t is settled doctrine in Connecticut that a valid jury verdict in a criminal case must be unanimous. Practice Book § 867; State v. Stankowski, 184 Conn. 121, 147, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981); State v. Gannon, 75 Conn. 206, 229-30, 52 A. 727 (1902)." State v. Daniels, 207 Conn. 374, 388, 542 A.2d 306 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989). " 'The possibility of disagreement by the jury is implicit in the requirement of a unanimous verdict and is part of the constitutional safeguard of trial by jury.' " (Emphasis added.) State v. Peary, 176 Conn. 170, 183, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979), quoting State v. Ralls, 167 Conn. 408, 421-22, 356 A.2d 147 (1974). Moreover, although the lesser included offense doctrine provides the jury with alternatives to acquittal or conviction of the greater offense; Beck v. Alabama, 447 U.S. 625, 633, 100 S. Ct. 2382, 65 L. Ed. 2d 56 (1980); the doctrine does not imply that the jury should be allowed to consider the charged offense and lesser included offenses in any order and with whatever degree of dedication it chooses. Nor does the presence of a lesser included offense somehow obviate the requirement that a unanimous verdict be rendered on all of the offenses considered by the jury, including the greater offense. "A corequisite of a lesser-included-offense charge . is that there be a rational basis for an acquittal on the offense charged and a conviction on the included offense. State v. Pallanck, 146 Conn. 527, 530, 152 A.2d 633 [1959]; see 23A C.J.S., Criminal Law, § 1298; Model Penal Code, Tentative Draft No. 5 (1956), comment § 1.08." (Emphasis added.) State v. Brown, 163 Conn. 52, 61 n.2, 301 A.2d 547 (1972). The Appellate Court nevertheless determined that, because "it is the defendant's liberty that is involved . . . he should be allowed to make the choice" of the transitional instruction to be given the jury. State v. Sawyer, supra, 29 Conn. App. 74. In support of its determination, the Appellate Court noted that by giving the defendant the option to choose between two transitional instructions, "it allows the defendant to gamble everything on the greater charge, hoping for an acquittal or at least a hung jury, or . at his option, to hedge his bet by gambling that the jury, as a result of a compromised verdict, may find him guilty of a lesser charge." Id. The jury instruction to be given at the conclusion of a trial, however, is a question of law that cannot be resolved by deference to the wish of the defendant or by a sporting theory of justice. See State v. Ferreira, 8 Haw. App. 1, 5, 791 P.2d 407, cert. denied, 71 Haw. 668, 833 P.2d 901 (1990); State v. Labanowski, 117 Wash. 2d 405, 422, 816 P.2d 26 (1991). A criminal trial is not a game of chance. Allowing the defendant to choose the transitional instruction and to gamble on its consequences slights the desirable goals of thorough deliberations and finality and neglects the state's interest in the resolution of the charges on which it presented the defendant. See People v. Boettcher, 69 N.Y.2d 174, 181-84, 505 N.E.2d 594, 513 N.Y.S.2d 83 (1987). Such an approach to transitional instructions is dictated more by expediency than by a commitment that justice be done to both the state and the defendant, and that the charges brought be thoroughly deliberated, considered and disposed of definitively. See Uniform Rules of Criminal Procedure 535 (b), comments, 10 U.L.A. 281-82 (1974) (unanimity requirement leads to more thorough consideration of issues and more careful deliberation). It is true, as the Appellate Court noted, that the defendant's liberty is at stake in a criminal trial. That interest is certainly substantial. That does not mean, however, that the defendant's liberty interest is the only substantial interest at stake in a criminal trial, so that he should have the right to select the mode of the transitional instruction based on his risk assessment of the outcome of the trial. The state also has a substantial interest, namely, its interest in securing a conviction on the most serious charge that the evidence will reasonably support. It is, moreover, the duty of the court to structure the jurors' deliberations in a manner that permits them to perform in an orderly fashion their fact-finding function in relation to the charged crime and any lesser included offenses. See State v. Gannon, supra, 219-24. This court's decisions in State v. Aparo, supra, State v. Daniels, supra, and State v. Stankowski, supra, require Connecticut juries to render unanimous verdicts in criminal cases. As a consequence, to ensure that the charged offense has been determined by unanimous agreement, the court must direct the jury to reach a unanimous decision on the issue of guilt or innocence of the charged offense before going on to consider the lesser included offenses. In State v. Aparo, supra, 388, we held that the only valid verdict in a criminal case is one that has been rendered by a unanimous jury. In Aparo, the state had charged the defendant with being an accessory to murder and with conspiracy to commit murder. A twelve person jury acquitted the defendant of the accessory charge but could not reach a unanimous decision on the conspiracy charge. The court therefore declared a mistrial on the conspiracy count in the information. The defendant argued in this court that because she had obtained at least six votes for acquittal on the mistried conspiracy charge, all that would have been required to acquit her if that charge had been tried separately, the double jeopardy clause of the fifth amendment protected her against a second prosecution for conspiracy. We determined the defendant's double jeopardy claim to be without merit because we concluded that the jury, by failing to agree, had not reached a valid verdict. Likewise, in State v. Daniels, supra, we considered whether a jury must render a unanimous verdict on the existence of a mitigating factor during a sentencing hearing held pursuant to General Statutes § 53a-46a, the death penalty statute. In Daniels, the jury had unanimously determined that the state had proven an aggravating factor. The jurors, however, were evenly split as to whether the defendant had proven a mitigating factor. The state argued that because the defendant bore the burden of proving a mitigating factor, the state was entitled to have the court sentence him to death. The defendant claimed that under the circumstances he was entitled to a life sentence. In Daniels, we rejected both arguments and stated: "It is settled doctrine in Connecticut that a valid jury verdict in a criminal case must be unanimous. Practice Book § 867; State v. Stankowski, [supra]; State v. Gannon, [supra]. A nonunanimous jury therefore cannot render any 'finding' of fact." Id., 388. We concluded that because of the lack of jury unanimity there had been no determination of whether a mitigating factor existed. Likewise, if a lack of unanimity is countenanced as to the determination of guilt or innocence of a charged offense, there will not be a determination of whether an accused is guilty or innocent of that offense. Finally, in State v. Stankowski, supra, we again emphasized the importance of jury unanimity, and noted that because of the requirement of unanimity, there always exists a possibility that a jury may be deadlocked. In Stankowski, the jury, after having been instructed on the charged offense of murder and the lesser included offense of manslaughter, asked the trial court whether it had " 'to reach a unanimous decision on the first or more serious charge before considering the lesser charge?' " Id., 143-44. The trial court responded that the jury must reach a unanimous decision on the greater offense and then gave a "Chip Smith" instruction. Id., 144-46. The defendant was subsequently convicted of murder. On appeal, the defendant challenged the "Chip Smith" charge, claiming that it violated his right to due process because it coerced some jurors into adopting the conclusions of the other jurors. Id., 146. In Stankowski, we did not directly consider the issue raised in the present case. In addressing the "Chip Smith" question in the context of a jury charge that instructed on greater and lesser included offenses, however, we did not question that the jury, as instructed by the trial court, must first achieve unanimity on the charged crime before considering any lesser included offenses. Moreover, we stated that " '[t]he possibility of disagreement by the jury is implicit in the require ment of a unanimous verdict and is part of the constitutional safeguard of trial by jury.' " (Emphasis added.) Id., 147, quoting State v. Peary, supra, 183; see State v. Ralls, 167 Conn. 408, 421-22, 356 A.2d 147 (1974). The defendant argues, however, that Aparo, Daniels, and Stankowski do not mandate that a jury must first arrive at a unanimous agreement on the charged offense before it may consider lesser included offenses. Specifically, the defendant argues that although Aparo and Daniels confirm the principle that jury verdicts must be unanimous, those cases are factually distinct from the present case because they do not implicate the jury's consideration of lesser included offenses. According to the defendant, both cases simply address the issue of what consequences flow from a jury's inability to reach a unanimous verdict on a single charged offense and have no precedential value for the present case. We disagree. Although neither Aparo nor Daniels specifically considered the proper transitional instruction between greater and lesser included offenses, they offer considerable guidance for this case. Neither Aparo nor Daniels said that only some jury verdicts must be unanimous. Rather, both stated categorically that the only valid verdict in a criminal case is one delivered by a unanimous jury. The defendant assumes, nonetheless, that when lesser included offenses are involved, a middle ground, compromise position always waits in the wings and may be turned to by the jury at any time that it is unable to agree on a verdict on the charged offense. That assumption carries with it the further assumption that at some point, the offense that the state has elected to prosecute may simply be bypassed and left in limbo without any resolution by way of a verdict. We are unaware of any authority in this state for that proposition. Although the jury may initially be instructed concerning lesser included offenses, and may eventually turn to these lesser included offenses to reach a verdict, it should not be given an instruction that could encourage it to give the charged offense short shrift and to turn to lesser included offenses in order to reach a compromise verdict virtually at the outset of its deliberations. Only after it has confronted and unanimously completed the difficult task of deciding the guilt or innocence of the accused as to the charged offense should the jury consider lesser included offenses. Anything less dilutes the right of the state and the defendant to have the jury give its undivided attention and most serious deliberations to the offense with which the defendant is charged and flies in the face of the unanimity requirement of Aparo and Daniels. Cf. State v. Wussler, 139 Ariz. 428, 430, 679 P.2d 74 (1984) ("[w]e find . . . that the instruction which requires an acquittal of the offense charged before consideration of lesser-included offenses provides for a more logical and orderly process for the guidance of the jury in its deliberations"). The defendant also contends, and the Appellate Court concluded, that Stankowski is distinguishable from this case. He asserts that our decision in Stankowski does not hold that the proper transitional instruction concerning lesser included offenses is the acquittal first instruction. Rather, he argues, Stankowski addressed only the propriety of the "Chip Smith" instruction given by the trial court. We agree that Stankowski does not directly address the question of whether an acquittal first instruction is required. The Stankowski court implicitly approved such an instruction, however, by noting that the trial court had given an acquittal first instruction in a direct answer to the jury's question as to whether it must agree on acquittal of the greater charge before considering the lesser included offense. The court then concluded that the "Chip Smith" charge given to resolve the temporary impasse caused by that instruction was not prejudicial to the defendant. If the Stankowski court had entertained misgivings about the propriety of the acquittal first instruction, it is unlikely that such misgivings would not have been expressed. The Appellate Court, although not holding that the reasonable efforts instruction is required as a matter of law, expressed the opinion that it would be beneficial to both the state and the defendant. According to the Appellate Court, the reasonable efforts instruction would assist the state in obtaining a conviction for at least some crime, even if not for the more serious crime that the state had elected to prosecute. State v. Sawyer, supra, 29 Conn. App. 75. As for the defendant, the Appellate Court noted that the reasonable efforts instruction would reduce the likelihood that he would be convicted of the greater charge because the jury, rather than simply convicting of the greater offense to avoid a mistrial, would proceed to the lesser included offenses and arrive at a compromise verdict. The Appellate Court also indicated a belief that a reasonable efforts instruction would be less likely to result in deadlocked juries and mistrials because such an instruction does not create the restraint to jury compromise that the acquittal first instruction does. Id., 74. Although those possibilities may exist, we believe that the Appellate Court, in trying to do something for everyone, misinterpreted precedent and gave "insufficient weight to the principle that it is the duty of the jury not to reach compromise verdicts based on sympathy for the defendant or to appease holdouts, but to render a just verdict by applying the facts it finds to the law [with which] it is charged." People v. Boettcher, supra, 183. Moreover, neither the Appellate Court nor the defendant on appeal to this court has lent substance to the specter of large numbers of mistrials resulting from the instructions presently employed by citing compelling empirical, statistical or other pertinent studies. Nor has it been demonstrated that mistrials are now the source of an inordinate burden on the public purse or unfairly abridge a defendant's right to bring his or her trial to a conclusion before a single tribunal. Further, Connecticut has long accepted the possibility of juror disagreement and the fact that mistrials are a natural consequence of the unanimity requirement. State v. Stankowski, supra, 147. Requiring unanimity "induces a jury to deliberate thoroughly and helps to assure the reliability of the ultimate verdict." State v. Daniels, supra, 389. The fact that a jury may occasionally be unable to reach a unanimous verdict by following the acquittal first instruction does not warrant the precipitous abandonment of precedent by tinkering with an instruction for which the necessity of repair has not been convincingly established. See State v. Boettcher, supra, 183-84; see L. Flynn, "Does Justice Fail When the Jury Is Deadlocked?" 61 Judicature 129 (1977) (a deadlocked jury may be "a reaffirmation of the system's integrity insofar as it serves to protect the minority's dissent, representing the subtle interplay of two vital concepts in the criminal law—the presumption of innocence and the exercise of reasonable doubt"). In order to preserve and promote the integrity of jury deliberations when greater and lesser included offenses are at issue, and to encourage the thorough and careful discussion and consideration owed the state and the defendant, we are unwilling to relax the prevailing unanimity requirement that is mandated by our common law. Although we have recognized that jurors may in fact compromise; State v. Monte, 131 Conn. 134, 137, 38 A.2d 434 (1944); we have never sought to encourage compromise and certainly have never openly advocated it. The reasonable efforts instruction also raises grave questions of public policy because of its implications for the doctrine of the implied acquittal in the context of the constitutional protection against double jeopardy. We have held that "[w]here a greater offense has been charged, conviction on a lesser offense is an acquittal on the greater." State v. Troynack, 174 Conn. 89, 99, 384 A.2d 326 (1977). In Troynack, we stated that "the trial court instructed the jury that if they did not find [the defendant] guilty of manslaughter in the first degree, they must then consider whether he was guilty of manslaughter in the second degree. The verdict of guilty of manslaughter in the second degree was thus an implicit acquittal on the greater offense." Id.; see also Price v. Georgia, 398 U.S. 323, 326-27, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970). Under the acquittal first instruction, the jury's verdict of guilty of a lesser included offense operates as an acquittal of the greater offense for the purposes of the double jeopardy clause. State v. Troynack, supra. Under a reasonable efforts instruction, however, it is unclear whether the jury's verdict of guilty of a lesser included offense would result in the defendant's implied acquittal of the greater offense, because, in the absence of some form of spe cial verdict, it would not be known whether the jury-had unanimously agreed to acquit of the greater offense. In State v. Aparo, supra, we expressly denied the defendant's double jeopardy claim that was based on the failure of the jury to achieve unanimity concerning the charge of conspiracy to commit murder. Under Aparo's reasoning, the defendant in the present case could similarly have been faced with the prospect of a retrial on the greater offense of murder had the trial court given the jury the reasonable efforts instruction requested because such an instruction does not logically give rise to an implied acquittal of the greater offense. "[T]he [state] should not be precluded from retrying a defendant on the greater offense unless a jury actually finds him innocent of that charge." People v. Boettcher, supra, 182. The acquittal first instruction avoids the double jeopardy problems that inhere in an instruction requiring only that the jury make a reasonable effort to arrive at a unanimous verdict on the charged crime before considering the lesser offenses. In summary, we conclude that the precedent of Aparo, Daniels and Stankowski and sound judicial policy counsel that we answer the first certified question in the affirmative and continue to require trial courts to instruct juries to reach agreement on the charged offense before giving consideration to lesser included offenses. The judgment of the Appellate Court is reversed and the case is remanded to that court for consideration of the defendant's remaining claim. In this opinion Peters, C. J., and Borden, J., concurred. The remaining two certified questions that we need not consider are: "(2) Does the jury instruction adopted by the Appellate Court violate the separation of powers doctrine by denying a full and fair adjudication of charges brought by state's attorneys under their independent constitutional authority (Article fourth, § 27)? (3) Did the Appellate Court improperly grant a new trial for a jury to consider manslaughter in the second degree and failing to find harmless error when this defendant's jury: (1) was fully charged on all of the lesser included offenses including manslaughter in the second degree; (2) considered the lesser included offense of first degree manslaughter and murder simultaneously; (3) indicated that [it] unanimously agreed that the defendant was guilty of either murder or manslaughter in the first degree; and (4) convicted the defendant of manslaughter in the first degree under facts which indicated that such a verdict was a major victory for the defendant?" State v. Sawyer, 224 Conn. 917, 617 A.2d 172 (1992). The court instructed the jury as follows: "And if you find that the state has proven each of these elements beyond a reasonable doubt, your verdict would be guilty, as charged, of murder. If, however, you do not find that each of these elements have been proven beyond a reasonable doubt then, obviously, your verdict on the charge of murder would be not guilty. But, again, that does not end your participation in this particular case. "Assume for the moment that you come to the conclusion that the state has proved the elements of murder and you render a verdict of guilty. Obviously, that would stop your deliberations and you would then report back that verdict. But, if during the course of your deliberations, you come to the conclusion that the state did not prove one or more of the elements that I've just given to you on the charge of murder then, obviously, your verdict would be not guilty of murder. "Then you would go to what we consider in law lesser included offenses. Now, in this case I'm going to charge you on two lesser included offenses. They are going to be manslaughter in the first degree and manslaughter in the second degree. So you get to this part of the case if you come to the conclusion that the state hasn't proved one or more of the elements of the charge of murder." The trial court stated: "So, let's just recapitulate because, I know I've read a lot to you and you might be getting a little concerned about it. "We start off with the charge of murder and go through that and then decide whether or not the state has proved all the necessary elements as I've given them to you of murder in the first degree. And if so, then, that would end your deliberations. You would come back in and find the defendant guilty as charged. If, however, you come to the conclusion that the state has not proved one or more of the elements of murder beyond a reasonable doubt then, obviously, your verdict would be not guilty to the charge of murder. "Your next step would be then to consider the aspect of manslaughter in the first degree as I charge it to you and the elements I have given on that particular charge. If after your discussion you come to a conclusion that the state has proved all of the elements of manslaughter in the first degree then your verdict would be guilty to manslaughter in the first degree. But, if you go through and come to the conclusion that the state has not proved one or more of the elements of manslaughter in the first degree, then you would come to the conclusion and say that the defendant is not guilty of manslaughter in the first degree. Then if you come to that conclusion then you would go through the elements that I have given to you on manslaughter in the second degree. And, again, if you come to the conclusion that the state has proved the elements of the charge beyond a reasonable doubt then your verdict would be guilty of manslaughter in the second degree. Then, obviously, after you deliberate and come to the conclusion that the state has not proved elements of manslaughter in the second degree then your verdict would be not guilty and that would end your deliberations." At that point the court also instructed the jury concerning the proper procedure for accepting the verdict. "The foreperson should take the first seat. And the clerk will then ask the foreperson, have you reached a verdict and, obviously, the answer will be yes or no. So, then, what she will do is to read the information to you on the charge of murder. So, the foreperson will say—and she will ask you, is he guilty or not of the charge of murder as charged. And, obviously, it will either be guilty or not guilty. If you say guilty, that will end it and we will go through what we call a repetition and the clerk will say to each and every one of you, is that your verdict, so say you all. And, audibly, you all have to answer. "Now, if per chance on the first charge of murder the foreperson comes back and says not guilty, then the clerk will go through and read the charge of manslaughter in the first degree and we will go through the same thing with the foreperson, is the defendant guilty or not guilty of the charge of manslaughter in the first degree. And depending on that, if it is guilty, then we will make a repetition and ask everybody, is that your verdict so say you all. And if the verdict on manslaughter in the first degree is not guilty, then the clerk will go through the charge of manslaughter in the second degree and to go through the same thing with the foreperson and depending on what the foreperson says, guilty or not guilty, and we will go through the same repetition. So, it's all done orally. That is the sequence that we will follow." Outside the presence of the jury, the following colloquy occurred: "The Court: With a discussion with counsel, what the court is going to say in interpreting the note, I will instruct the jury that before they go as to manslaughter in the first degree they must agree unanimously on the charge of murder in their deliberations. That, obviously, would either be guilty or not guilty and they could not go to manslaughter in the first degree until they unanimously came to the position of not guilty on the charge of murder. It is the court's position as far as the law in Connecticut at this particular time, that if they cannot reach a unanimous verdict on the charge of murder either of guilty or not guilty then we get to a question of mistrial and we don't put the charge of murder aside and go to the manslaughter in the first degree without a decision as to murder. Anybody got any comments? "[Defense Counsel:] Yes, Your Honor. At this time I would simply ask again that the defendant's request to charge, number two, which I think would instruct the jury contrary to what Your Honor just stated, be given to the jury. I'm sure that Your Honor has already indicated that that will not be done. I would ask it to be done to be consistent. Clearly, that is a request of charge that is crucial at this point in the trial. So, I would renew the request that defendant's request number two be given to the jury at this time. "The Court: Miss Klatt. "[The State:] And, again, Your Honor, I would object to the defendant's second request to charge. I don't believe it is a law in the state of Connecticut at least at this juncture. And I have no exception to the court's proposed instructions to the jury at this point. "The Court: Obviously, I think you and I agree, Mr. McWhirter [Defense Counsel], that the present ease law in Connecticut says that I cannot do as you are requesting in your request to charge. So, I can only rely on the wisdom from above. And whether that is precise or imprecise at this particular time, we will all have to wait for another day. But, obviously, your exception is noted." In United States v. Tsanas, 572 F.2d 340, 346 (2d Cir.), cert. denied, 435 U.S. 995, 98 S. Ct. 1647, 56 L. Ed. 2d 84 (1978), the Second Circuit Court of Appeals, after discussing the merits of the acquittal first and reasonable efforts instructions, held: "With the opposing considerations thus balanced, we cannot say that either form of instruction is wrong as a matter of law. The court may give the one that it prefers if the defendant expresses no choice. If he does, the court should give the form of instruction which the defendant reasonably elects." This conclusion made it unnecessary for the Appellate Court to consider the defendant's additional claim that General Statutes § 53a-55 (a) (3) is unconstitutionally vague. State v. Sawyer, 29 Conn. App. 68, 69-70, 614 A.2d 471 (1992). In adopting the optional approach espoused by the Second Circuit Court of Appeals in United States v. Tsanas, 572 F.2d 340, 346 (2d Cir.), cert. denied, 435 U.S. 995, 98 S. Ct. 1647, 56 L. Ed. 2d 84 (1978), the Appellate Court joined a number of decisions from other circuits and state jurisdictions that endorse either the optional approach or the reasonable efforts instruction. See, e.g., United States v. Jackson, 726 F.2d 1466, 1469-70 (9th Cir. 1984); Pharr v. Israel, 629 F.2d 1278, 1282 (7th Cir. 1980); Catches v. United States, 582 F.2d 453, 459 (8th Cir. 1978); People v. McGregor, 635 P.2d 912, 914 (Colo. App. 1981); Wright v. United States, 588 A.2d 260, 262 (D.C. App. 1991); State v. Ferreira, 8 Haw. App. 1, 791 P.2d 407, cert. denied, 71 Haw. 668, 833 P.2d 901 (1990); State v. Korbel, 231 Kan. 657, 661, 647 P.2d 1301 (1982); People v. Handley, 415 Mich. 356, 358-60, 329 N.W.2d 710 (1982); State v. Thomas, 401 Ohio St. 3d 213, 218-20, 533 N.E.2d 286 (1988), cert. denied, 493 U.S. 826, 110 S. Ct. 89, 107 L. Ed. 2d 54 (1989); Tarwater v. Cupp, 304 Or. 639, 645, 748 P.2d 125 (1988); State v. Allen, 301 Or. 35, 38-40, 717 P.2d 1178 (1986); State v. Duff, 50 Vt. 324, 554 A.2d 214 (1988); State v. Labanowski, 117 Wash. 2d 405, 816 P.2d 26 (1991). Our conclusion endorsing the acquittal first instruction, however, is consistent with those reached by other jurisdictions. See, e.g., Lindsey v. State, 456 So. 2d 383, 387 (Ala. Crim. App. 1983), aff'd, 456 So. 2d 393 (Ala. 1984), cert. denied, 470 U.S. 1023, 105 S. Ct. 1384, 84 L. Ed. 2d 403 (1985); Whiteaker v. State, 808 P.2d 270, 274 (Alaska App. 1991); State v. Hernandez, 167 Ariz. 236, 240-41, 805 P.2d 1057 (1990); People v. Padilla, 638 P.2d 15, 17 (Colo. 1981); Lamar v. State, 243 Ga. 401, 403, 254 S.E.2d 353, appeal dismissed, 444 U.S. 803, 100 S. Ct. 23, 62 L. Ed. 2d 16 (1979); Middlebrooks v. State, 156 Ga. App. 319, 320, 274 S.E.2d 643 (1980); State v. Van Dyken, 242 Mont. 415, 791 P.2d 1350, cert. denied, 498 U.S. 920, 111 S. Ct. 297, 112 L. Ed. 2d 251 (1990); People v. Boettcher, 69 N.Y.2d 174, 505 N.E.2d 594, 513 N.Y.S.2d 83 (1987); State v. Wilkins, 34 N.C. App. 392, 398-401, 238 S.E.2d 659, cert. denied, 294 N.C. 187, 241 S.E.2d 516 (1977); Commonwealth v. Hart, 388 Pa. Super. 484, 499-500, 565 A.2d 1212 (1989), appeal denied, 525 Pa. 642, 581 A.2d 569 (1990); State v. McNeal, 95 Wis. 2d 63, 66-68, 288 N.W.2d 874 (1980). The actual vote on the conspiracy charge was seven to five for acquittal. State v. Aparo, 223 Conn. 384, 388, 614 A.2d 401 (1992). The "Chip Smith" charge was given in State v. Stankowski, 184 Conn. 121, 147, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981), in order to help the jury achieve unanimity, whether that unanimity involved a guilty or not guilty verdict. A "Chip Smith" instruction reminds the jurors that they must act unanimously, while also encouraging a deadlocked jury to reach unanimity. See State v. Smith, 49 Conn. 376 (1881); see also 5 Connecticut Practice, D. Borden & L. Orland, Connecticut Criminal Jury Instructions (1986) § 4.8. In response to the jury's question, the trial court answered: " 'The last question which you sent out reads as follows: "Does the jury have to reach a unanimous decision on the first or more serious charge before considering the lesser charge?" " 'The answer to the question is yes. You make a decision on the greater charge first and then you go on to the lesser charge, if you decide that the accused is not guilty of murder in the first degree on the first charge. Then and only then will you consider the lesser included charge.' " State v. Stankowski, 184 Conn. 121, 146 n.6, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). "Reasonable efforts" is an imprecise term that could be interpreted as minimal efforts by a jury faced with the difficult task of attempting to reach a verdict on the charged offense in a particularly sympathetic situation. The Appellate Court noted: "Although we favor the reasonable efforts instruction and would like to see its adoption in Connecticut, we cannot conclude that it is mandated by law." State v. Sawyer, 29 Conn. App. 68, 75-76, 614 A.2d 471 (1992). The court in State v. Monte, 131 Conn. 134, 136, 38 A.2d 434 (1944), stated: "A verdict must in the end speak a conclusion to which each individual juryman gives his conscientious assent. " (Emphasis added.)

The state of Connecticut's petition for certification for appeal from the Appellate Court, 31 Conn. App. 688 (AC 11282), is granted, limited to the following issues: "1. Did the Appellate Court properly reverse the judgment of the trial court by holding that this court's decision in State v. Tatem, 194 Conn. 594, establishes that the trial court's use of the word 'unreasonable' in place of 'unfavorable' in instructing the jury under General Statutes § 54-84 (b) automatically requires reversal and a new trial? The Supreme Court docket number is SC 14831. Decided September 15, 1993 Stephen R. Park, assistant attorney general-special assistant state's attorney, in support of the petition. "2. If the answer to question 1. is no, was the trial court's misstatement of the word 'unreasonable' in charging the jury under General Statutes § 54-84 (b), when viewed in the context of the jury charge as a whole and the evidence in the case, harmless beyond a reasonable doubt?"

Landau, J. This matter is currently before us on remand from our Supreme Court. Rossi v. Stanback, 230 Conn. 175, 644 A.2d 352 (1994). On appeal from a judgment rendered on a jury verdict in favor of the defendants, William H. Stanback and Savin Brothers, Inc. (Savin), in a cause of action sounding in negligence, the plaintiffs claim that the trial court improperly (1) charged the jury on the applicable standard of care, (2) instructed the jury that it could not consider certain evidence in its deliberations, and (3) recharged the jury regarding proper lookout and due care. The following facts, set out in Rossi v. Stanback, 31 Conn. App. 703, 626 A.2d 829 (1993), are pertinent to the resolution of this appeal. "On July 20, 1987, the defendant William H. Stanback was employed as a truck driver for the defendant Savin Brothers, Inc., a construction firm under contract with the state of Connecticut to widen Interstate 91 in Hartford. The dece dent [Gaetano T. Rossi] was employed'as an inspector by C. E. McGuire. As part of the construction process, Savin transported loads of fill to the construction site. Rossi's duties were to inspect the loads of fill dumped on the site and to calculate the cubic yardage of fill deposited. John Santos was employed by Savin as a 'dump man.' As a dump man, Santos directed the truck drivers on the jobsite, among them Stanback, as they were backing up to dump the loads of fill. The direction was necessary because the truck drivers could not see directly behind their trucks as they were backing up. After the drivers had backed into the position as directed by the dump man, they would raise the truck bodies, drop the fill, and pull forward with the truck bodies raised to allow all the fill to fall from the trucks. The truck drivers would then stop, lower the truck bodies, and latch the tailgates. These maneuvers were directed by hand signals from the dump man to the truck drivers. A blast of a truck horn was a danger signal used by the drivers. Whenever a horn sounded, all truckers were to stop immediately. "On the day of the accident, Stanback drove onto the dumpsite, made a U-tum, stopped and waited for a signal from Santos. While Stanback got into position, Santos was directing another driver, Willie McDuffie, through his dumping routine. While Stanback was waiting and McDuffie was pulling forward to finish his dump, Rossi walked toward Santos. When Santos finished with McDuffie and turned toward Stanback, he saw that Stanback had begun to back up and was heading directly at Rossi. Santos immediately yelled to both Rossi and Stanback, but neither heard him because of the noise on the site. Santos then ran to McDuffie's truck and told him to sound his horn, which McDuffie did twice. Stanback did not heed the first warning. Rossi, however, heard the first blast and turned toward Stanback's truck. As he turned, Stanback's truck knocked him over and dragged him under the driver's side rear wheels. Stanback continued to back up. Stan-back heard the second blast and stopped backing up. Santos ran to Stanback's truck and told him what had happened. Rossi, meanwhile, was caught between the first two sets of tires. Santos told Stanback to pull forward over Rossi so as to render medical attention. Stan-back, however, backed up and over Rossi again. Shortly thereafter, Rossi died." Id., 704-705. I The plaintiffs first claim that the trial court improperly charged the jury as to the applicable standard of care. Specifically, the plaintiffs contend that the trial court refused to instruct the jury in accordance with two of their requests to charge, the combined gist of which was that the degree of care required increases as the risk of harm increases. The result of the court's failure to so charge, the plaintiffs assert, is that the jury was misled to believe that reasonable care in this case was "simple care" rather than "very great care." We disagree. In reviewing the plaintiffs' claim, we must determine whether the jury instructions "gave the jury a reasonably clear comprehension of the issues presented for their determination under the pleadings and upon the evidence and were suited to guide the jury in the determination of those issues. . . . [I]n our task of reviewing jury instructions, we view the instructions as part of the whole trial. . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper." (Citations omitted; internal quotation marks omitted.) Blanchette v. Barrett, 229 Conn. 256, 281, 640 A.2d 74 (1994). Moreover, "[a] refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance. ." (Citations omitted; internal quotation marks omitted.) State v. Gant, 231 Conn. 43, 47, 646 A.2d 835 (1994). Here, while the trial court refused to use the exact words of the plaintiffs' request, it properly instructed the jury that the degree of care required varies with the specific circumstances of a case. Specifically, the court charged that "in circumstances of great danger, a correspondingly greater amount of care would be required to constitute reasonable care." The court also instructed that " [reasonable care is care proportioned to the danger existing in the surrounding circumstances." The plaintiffs, in their exception, stated that the trial court did not instruct the jury that the right to assume due care correspondingly decreases as the risk of harm becomes more foreseeable. The court, however, made it clear that the degree of care required, a concept that embraces both the duty to foresee risk of harm and the right to assume due care by others, is dependent on the circumstances of the case. A consideration of the court's instructions as to this issue, in conjunction with the entirety of the court's charge, reveals that the trial court properly instructed the jury on the standard of care required of the defendants. II The plaintiffs next claim that the trial court improperly charged the jury that, even if it found the actions of Santos to be inappropriate, it could neither use that determination as a basis for finding Savin negligent, nor impute Santos' actions to Savin. The plaintiffs contend that they established Santos' negligence, as well as the fact that he was an employee of Savin. Consequently, the jury should have been allowed to impute Santos' negligence to Savin. The plaintiffs assert that the trial court's charge prevented the jury from finding liability on the part of Savin based on Santos' negligence and, therefore, was incorrect as a matter of law. We are unpersuaded. We are again guided by the settled rule that "[a]s 'long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury'; Kelley v. Bonney, 221 Conn. 549, 584, 606 A.2d 693 (1992); we will not view the instructions as improper." Blanchette v. Barrett, supra, 229 Conn. 281. " 'It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of [the] complaint.' " Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 496, 646 A.2d 1289 (1994), quoting Lundberg v. Kovacs, 172 Conn. 229, 232, 374 A.2d 201 (1977). Count two of the plaintiffs' complaint alleges that Savin carelessly, recklessly and negligently caused the death of the decedent through its failure to train, advise, or warn its employees, or to provide for an adequate number of employees on the work site. Count two alleges no breach of duty by Santos as a basis for the plaintiffs' claim against Savin. Rather, it is exclusively limited to the allegedly negligent actions of Savin. The plaintiffs specifically assert that paragraph 6 (e) of count two permits the jury to impute the negligence of Santos to Savin. A plain reading of that paragraph reveals that it alleges nothing more than the inadequate instruction of its employees by Savin. A jury finding of negligence on the part of Santos would not support a claim against Savin under paragraph 6 (e). The trial court was correct in instructing the jury that any inappropriate action by Santos could not be used as a basis for finding Savin liable. Ill The plaintiffs' final claim is that the trial court improperly recharged the jury regarding the duty of Stanback, the driver of the truck, to keep a proper lookout. It is unnecessary for us to review this issue, however, because it has not been properly preserved. Practice Book § 315 "provides that this court is not bound to review claims of error in jury instructions if the party raising the claim did not either submit to the trial court a written request to charge or promptly except to the charge after it was delivered. . . . The purpose of the rule is to alert the court to claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials." (Internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 814, 614 A.2d 414 (1992). Here, the defendants had requested a jury charge concerning proper lookout and the degree of care required of the driver of the truck. After the trial court failed to give the charge, the defendants took an exception, in response to which the court gave a supplemental charge regarding proper lookout. The plaintiffs, who now claim that the trial court acted improperly, did not take an exception to the recharge. Consequently, they have failed to preserve this issue for appellate review. See Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 254 A.2d 907 (1969); Terrazzano v. Sporna, 157 Conn. 39, 244 A.2d 599 (1968). The judgment is affirmed. In this opinion the other judges concurred. In Rossi v. Stanback, 31 Conn. App. 703, 626 A.2d 829 (1993), we reversed the judgment of the trial court and remanded the case for a new trial. The plaintiffs had asserted four claims on appeal, the first of which was that the trial court improperly refused to submit separate plaintiffs' verdict forms for each count of the complaint. Because we agreed with the plaintiffs' first claim, we did not address the remaining three. Id., 704. The Supreme Court granted certification; Rossi v. Stanback, 227 Conn. 912, 632 A.2d 695 (1993); reversed our judgment and remanded the case for our consideration of the plaintiffs' remaining claims. Rossi v. Stanback, supra, 230 Conn. 181. The pertinent requests to charge stated: "9. 'As the risk of harm becomes more foreseeable, the duty to foresee that risk increases and the right to assume due care correspondingly decreases.' In this instance you must determine whether or not it was foreseeable for the Defendant, William Stanback and the Defendant, Savin Brothers, to anticipate individuals or objects behind the dump trucks. In this light, you must consider the standard of care that the Defendants were operating under. That is to say that they testified that a dump truck would not be backed up without the aid of a dump man who at all times stood in the driver's mirror. If you determine that the risk of an individual being run over by a dump trunk without the aid of a dump man becomes more foreseeable, then the duty to foresee that risk on the part of the truck driver increases and furthermore, the truck driver's right to assume due care on the part of any individuals in that area correspondingly decreases. Again, where a danger may extend to taking life, reasonable care is very great care. "10. There has been testimony that the Defendants knew that there was a blind spot behind these trucks. The Defendants testified that they took certain steps to protect individuals who may have been caught in these blind spots behind the trucks. Namely they placed rear view mirrors on the trucks. Furthermore, they placed audible back up signals on the trucks and in addition to that they also had a requirement that the trucks would not back up without the proper signal from the dump man who at all times was to stand in the driver's rear view mirror. The Defendants are required to know the common qualities and habits of human beings, insofar as they are a matter of common knowledge in the community. The Defendants may have special knowledge of the qualities and habits of the Plaintiff over and above the minimum that they are required to know or the Defendants may have had special warning that the Plaintiff was negligent or reckless in this particular case. Even without such special knowledge, the Defendants are required to know that there is a certain amount of negligence in the world and that some human beings will fail on occasion to behave as reasonable men would behave. When the possibility of such negligence involves an unreasonable risk of harm, to either a person or an object behind the truck in its blind spot, the Defendants, as reasonable men are required to take that into account and govern their conduct accordingly." This claim goes to the second count of the plaintiffs' complaint, which was directed against the defendant Savin only. The trial court charged the jury as follows: "Now with regard to the complaint, the plaintiffs' right to recover is limited to the allegations contained in the complaint. This is necessary to maintain a regularity of procedure and to make for just decisions. As a fundamental corollary to this rule, the plaintiffs may not recover for something that is not alleged in the complaint. In other words, the plaintiffs are limited to the allegations of the complaint. Now with regard to the testimony of John Santos and regarding his actions, he has at times been referred to as the dump man. Based on this evidence, you may reach various conclusions relative to the actions of Mr. Santos. However, at no time in the complaint have the plaintiffs alleged any breach of duty by Mr. Santos as a basis for their actions against the defendant, Savin Brothers. Accordingly, I instruct you as a matter of law that even if you find that the actions of Mr. Santos were in some ways inappropriate, you may not use that determination as a basis to find against either defendant in this case. The actions of Mr. Santos may not be imputed to the defendants in this case." Paragraph 6 (e) alleges that Savin is liable "in that, it did not adequately instruct its employees including its truck drivers in the recognition and avoidance of unsafe conditions and the regulations applicable to their work environment to control or eliminate any hazards or other exposure to injury insofar as it related to the backing up of its trucks in violation of OSHA Regulation 29 CFR [§] 1926.21." Practice Book § 315 provides: "The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury."

Per Curiam. The judgment is affirmed and the case is remanded for the purpose of setting new law days.

Per Curiam. The plaintiff appeals from the judgment of the trial court that confirmed an arbitration award in favor of the defendant insurers on the plaintiff's underinsured motorist claim. The trial court determined that the arbitrator properly found that the plaintiff was not underinsured pursuant to General Statutes (Rev. to 1993) § 38a-336 (d). The plaintiff concedes that our Supreme Court's decisions in Covenant Ins. Co. v. Coon, 220 Conn. 30, 594 A.2d 977 (1991), and American Motorist Ins. Co. v. Gould, 213 Conn. 625, 569 A.2d 1105 (1990), dictate this result. He, nevertheless, invites this court to review his claims that (1) Coon and Gould, were wrongly decided and (2) § 38a-336 (d), as interpreted by our Supreme Court and applied to this case, violates the equal protection clauses of the United States and Connecticut constitutions. We cannot address the plaintiffs claims that the Coon and Gould cases were wrongly decided as we are bound by Supreme Court precedent. See Somohano v. Somohano, 29 Conn. App. 392, 615 A.2d 181 (1992). We decline to review the plaintiff's claim that "[§ 38a-336 (d)], as construed in Gould and Coon, is unconstitutional . . . ." Even though the equal protection claims presented here were not raised or considered in Coon and Gould, it is not our function, as an intermediate appellate court, to review whether those decisions render that statute unconstitutional. Whether to overrule a prior Supreme Court decision on grounds not raised in the argument of that case is a matter appropriately reserved for the Supreme Court. See State v. Welch, 224 Conn. 1, 5-6, 615 A.2d 505 (1992). The judgment is affirmed. General Statutes (Rev. to 1993) § 38a-336 (d) provides: "For the purposes of this section, an 'underinsured motor vehicle' means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subsection (b) of this section." The fourteenth amendment to the constitution of the United States provides in pertinent part: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." The constitution of Connecticut, amendment twenty-one, provides in pertinent part: "No person shall be denied the equal protection of the law . . . ."

Per Curiam. The judgment is affirmed.

Per Curiam. The judgment is affirmed.

Per Curiam. The judgment is affirmed.

Peters, C. J. The principal issue in these consolidated appeals is the constitutional necessity of a jury trial in an environmental enforcement action. The trial court rendered judgment in these three environmental actions, which had been consolidated for trial, against the defendants, Connecticut Building Wreck ing Company, Inc. (CBW), and Geno Capozziello and Russell Capozziello, and in favor of the plaintiff, the commissioner of environmental protection (commissioner). The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeals to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm in part and reverse in part. The commissioner brought the three cases from which this appeal arises against one or all of the defendants for alleged environmental violations committed in Bridgeport and Monroe. In Docket No. 14435, the commissioner sought to enforce a June 1, 1986 final administrative order (1986 order) requiring CBW to discontinue all waste deposit at 329 Central Avenue in Bridgeport (Bridgeport site). The complaint in Docket No. 14435 also alleged that CBW had committed solid waste violations, water pollution violations and unreasonable pollution at the Bridgeport site from June 1, 1986, to the date of the complaint. The commissioner sought injunctive relief and civil penalties against CBW pursuant to General Statutes § 22a-18, 22a-226, 22a-435 and 22a-438. In Docket No. 14436, the commissioner alleged that all of the defendants had illegally dumped solid waste at 781 Main Street in Monroe (Monroe site), a designated wetland, and had created a discharge into the groundwater without a permit. The commissioner sought injunctive relief and civil penalties against all of the defendants pursuant to General Statutes § 22a-438. In Docket No. 14437, the commissioner alleged substantially the same claims against the Capozziellos as those alleged against CBW in Docket No. 14435, with the exception of the claim relating to the 1986 order, as that order had been directed solely against CBW. The commissioner sought injunctive relief and civil penalties against the Capozziellos pursuant to § 22a-18, 22a-226, 22a-435 and 22a-438. In each of the three cases, the defendants asserted several special defenses, most of which are not relevant to these appeals. In Docket No. 14437, the Capozziellos asserted the defenses of res judicata and collateral estoppel, which the trial court, Stengel, J., rejected. In addition, the trial court, M. Hennessey, J., granted a motion by the commissioner to strike Docket No. 14437 from the jury docket. After a consolidated trial to the court, the trial court, Stengel, J., made the following findings. Since the issuance of the 1986 final order, the defendants had continuously violated that order by "blatantly disregarding]" its directives, and had violated § 22a-207 et seq. by operating a volume reduction plant and a transfer station at the Bridgeport site. In addition, the defendants had, in violation of § 22a-32, deposited debris at the Monroe site, a wetland, without a permit. As to the allegation of water pollution at the Bridgeport site, the trial court found that the commissioner had not sustained the requisite burden of proof. In view of these- violations, the trial court enjoined the defendants from depositing, receiving, processing and transferring waste at the Bridgeport site. The court ordered them to remove the existing debris from that site and to dispose of it at an authorized facility, with certain restrictions on out-of-state disposal. The court also enjoined the defendants from either depositing solid waste or owning or operating a solid waste transfer station anywhere in the state without a permit. Finally, the court ordered the defendants to maintain a record of waste removal activities at the Bridgeport site, to be submitted weekly to the commissioner, until such time as all waste had been removed from that site. The trial court also imposed civil penalties totaling $868,950, including: in Docket No. 14435, $417,200 pursuant to § 22a-226 for the violation of the 1986 order for 1192 days, at $350 per day; in Docket No. 14436, $162,750 pursuant to § 22a-438 for the unauthorized dumping of debris in a wetland area for 651 days, at $250 per day, in violation of § 22a-32; and, in Docket No. 14437, $289,000 pursuant to § 22a-226 for operating a volume reduction plant and a transfer station without a permit for 578 days, at $500 per day, in vio lation of § 22a-207. In accordance with Carothers v. Capozziello, 215 Conn. 82, 103-104, 574 A.2d 1268 (1990), and § 22a-438, the trial court determined the appropriate amount of penalties on the basis of the gravity of the violations, the substantial period of time over which the defendants had committed the violations, the substantial profits generated by the violations, the hazard posed to the public because of the violations, the flagrancy with which the defendants had committed the violations and the defendants' lack of good faith in failing to comply with applicable environmental requirements. The trial court imposed joint and several liability for each of the fines on each defendant because "all defendants are equally answerable and responsible to the Commissioner." On appeal, the defendants claim that: (1) the trial court, M. Hennessey, J., improperly granted the commissioner's motion to strike Docket No. 14437 from the jury docket; and (2) the trial court, Stengel, J., improperly (a) rejected the defense of res judicata in Docket No. 14437, (b) held the Capozziellos liable, jointly and severally with CBW, for the civil penalty imposed in Docket No. 14435, and (c) imposed a civil penalty in Docket No. 14436, for 651 days of continuing violations. We agree with the defendants as to the claim concerning the penalty in Docket No. 14435 and affirm the judgment of the trial court as to the remaining claims. I The Capozziellos claim that the trial court, M. Hennessey, J., improperly struck the third case, Docket No. 14437, from the jury docket. We disagree. Article first, § 19, of the Connecticut constitution guarantees a jury trial in all cases for which "there was a right to a trial by jury at the time of the* adoption of [that] provision," which was 1818. (Internal quotation marks omitted.) Skinner v. Angliker, 211 Conn. 370, 373-74, 559 A.2d 701 (1989); see Canning v. Lensink, 221 Conn. 346, 350-51, 603 A.2d 1155 (1992); Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 50, 578 A.2d 1054 (1990). Article first, § 19, also provides the right to a jury trial in cases that are substantially similar to cases for which the right to a jury trial existed at common law in 1818. Skinner v. Angliker, supra, 374. "Accordingly, in determining whether a party has a right to a trial by jury under the state constitution . . . the court must ascertain whether the action being tried is similar in nature to an action that could have been tried to a jury in 1818 when the state constitution was adopted. This test requires an inquiry as to whether the course of action has roots in the common law, and if so, whether the remedy involved was one in law or equity." Id., 375-76. In a case that involves both legal and equitable claims, " 'whether the right to a jury trial attaches depends upon the relative importance of the two types of claims.' " Texaco, Inc. v. Golart, 206 Conn. 454,458-59, 538 A.2d 1017 (1988). " '[W]here the essential right asserted is equitable in its nature and damages are sought in lieu of equitable relief or as supplemental to it in order to make that relief complete, the whole action is one in equity and there is no right to a jury trial.' " Dick v. Dick, 167 Conn. 210, 220, 355 A.2d 110 (1974). A jury trial is required on legal claims that are joined in the same action with equitable claims only if " 'the essential basis of the action is such that the issues presented would be properly cognizable in an action of law . . . even though equitable relief is [also] asked . . . .' " United States Trust Co. v. Bohart, 197 Conn. 34, 45, 495 A.2d 1034 (1985). The Capozziellos do not claim that environmental enforcement actions existed at common law in 1818, but rather that such actions are substantially similar to actions in debt, which existed at common law in 1818 and could be tried to a jury. In support of this contention, they cite Tull v. United States, 481 U.S. 412, 107 S. Ct. 1831, 95 L. Ed. 2d 365 (1987), in which the United States Supreme Court held that the seventh amend ment guarantees a jury trial in actions for civil penalties and injunctive relief under the federal Clean Water Act, 33 U.S.C. § 1251 et seq. We are not persuaded. In Connecticut, an environmental enforcement action for injunctive relief and civil penalties, like Docket No. 14437, is not substantially similar to an action in debt. A common law action in debt lies "where there [is] due a sum certain or capable of reduction to certainty." Anderson v. Bridgeport, 134 Conn. 260, 264, 56 A.2d 650 (1947). By contrast, the equitable common law action in assumpsit "might be brought to recover unliquidated damages." (Emphasis added.) Id., 264-65; see also Bailey v. Goshen, 32 Conn. 546, 549 (1865). A principal characteristic of an action in debt, therefore, is that the sum to be recovered is certain and liquidated: "Debt is an action founded on contract, express or implied, in which the certainty of the sum, or duty appears, and in which the plaintiff is to recover the sum in numero, and not in damages." 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) p. 127. In this case, although the complaint requested a specified amount of damages, the statutory maximum, the commissioner nonetheless sought an unliquidated sum from the Capozziellos. The penalty requested in the complaint was not certain in the sense that it was tied to a contractual obligation or debt. In addition, § 22a-226 and 22a-438, pursuant to which the trial court imposed the challenged penalty, give discretion to the trial court to determine, within specified guide lines, the appropriate amount of the daily fine. See General Statutes § 22a-226 and 22a-438, set out in footnote 2; see also Keeney v. L & S Construction, 226 Conn. 205, 626 A.2d 1299 (1993). Accordingly, an environmental action like Docket No. 14437 cannot, consistently with Connecticut's common law history, be considered substantially similar to an action in debt, for which a state constitutional right to a jury trial would exist. Moreover, the Capozziellos' heavy reliance on the United States Supreme Court's decision in Tull is unavailing. In holding that the seventh amendment requires jury trials in actions brought pursuant to § 1319 (d) of the federal Clean Water Act, the court in Tull noted that, before the enactment of the seventh amendment, English courts had held that a civil penalty suit is "a particular species of an action in debt that was within the jurisdiction of the courts of law." Tull v. United States, supra, 418. The court in Tull also recognized that, after the enactment of the seventh amendment, federal courts had treated a suit for a civil penalty as an action in debt requiring a jury trial. Id. This federal history, as recited in Tull, is thus inconsistent with our state's history concerning an action in debt. Furthermore, even if we were to agree that a jury trial would be constitutionally required on a claim for civil penalties standing alone, we are not persuaded that the United States Supreme Court's characterization in Tull of the nature of a federal environmental enforcement action as primarily legal applies to the state environmental enforcement action at issue here. The court in Tull concluded that, because § 1319 (d) authorizes the court to weigh various considerations, some reflecting concern for legal relief and some reflecting concern for equitable relief, in determining the appropriate amount of penalties to impose, § 1319 (d) "reflects more than a concern to provide equitable relief." Id., 423. Accordingly, the court determined, on the basis of the mixed nature of the relief contemplated by § 1319 (d), that that relief was sufficiently legal to require a jury trial pursuant to the seventh amendment. Sections 22a-226 and 22a-438, like § 1319 (d), authorize the court to consider a variety of factors to determine the appropriate penalty. Although some of those factors, such as gravity of the violations, suggest goals of retribution or punishment, which have historically been the province of courts of law, other factors, such as the profit generated by the illegal conduct, suggest a goal of restitution, an equitable remedy. In our view, because the legislature granted authority to consider all of these factors, when relevant, this inquiry is not dispositive of whether the action is primarily equitable or primarily legal. Accordingly, we must determine, on the basis of other factors, the nature of this environmental action, in which the commissioner sought both monetary penalties and injunctive relief. See Texaco, Inc. v. Golart, supra, 454; United States Trust Co. v. Bohart, supra, 45. In the present case, the trial court's judgment includes extensive injunctions against the Capozziellos aimed at gaining their compliance with the applicable statutes, as well as a penalty that, although substantial, does not approach the statutory maximum. By contrast, in Tull, the government had sought a penalty of more than $22 million and "modest equitable relief," leading the United States Supreme Court to conclude that the enforcement action sought relief that was primarily legal in nature. More generally, General Statutes § 22a-l, the legislature's statement of environmental policy, asserts the importance of protecting and maintaining the natural resources of the state and of preserving the status quo with regard to the quality of the environment. We consider this legislative goal of protecting the environment through preservation and restoration of natural resources to be a dominant goal in this and other environmental enforcement actions. Because this goal is restitutionary, or equitable, in nature, we are persuaded that environmental enforcement actions under our state's environmental statutes are primarily equitable. Accordingly, in light of our common law history concerning the action in debt, the distinctions between this case and Tull and the legislative goal of preserving environmental quality, we conclude that article first, § 19, does not require a jury trial in environmental enforcement actions. The Capozziellos' claim is, therefore, without merit. II The Capozziellos contend that, under the doctrine of res judicata, the commissioner's prosecution of CBW in the 1986 action precludes the action against the Capozziellos in Docket No. 14437. We disagree. "[C]laim preclusion [or res judicata] prevents a litigant from reasserting a claim that has already been decided on the merits. . . . Under claim preclusion analysis, a claim—that is, a cause of action—includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. . . . Moreover, claim preclusion prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made." (Citations omitted; internal quotation marks omitted.) Scalzo v. Danbury, 224 Conn. 124, 127-28, 617 A.2d 440 (1992); see DeLaurentis v. New Haven, 220 Conn. 225, 239, 597 A.2d 807 (1991); Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 43, 526 A.2d 1329 (1987). "The doctrine of res judicata [applies] . as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction"; Wade's Dairy, Inc. v. Fairfield, 181 Conn. 556, 559, 436 A.2d 24 (1980); and promotes judicial economy by preventing relitigation of issues or claims previously resolved. Scalzo v. Danbury, supra, 127; Carothers v. Capozziello, 215 Conn. 82, 94, 574 A.2d 1268 (1990). The parties' disagreement concerning the application of the doctrine of res judicata in this case focuses prin cipally on two elements of that doctrine, both of which must be satisfied if the Capozziellos are to prevail on the defense. The Capozziellos contend, first, that the commissioner's 1986 action against CBW alleged the same claims as those asserted against the Capozziellos in Docket No. 14437 and, second, that the Capozziellos are in privity with CBW for the purpose of res judicata analysis. The commissioner contends, to the contrary, that res judicata does not bar the prosecution of Docket No. 14437 because: (1) the conduct that gave rise to that action occurred after both the 1986 order and the effective dates of new statutes on which the complaint was predicated; and (2) the Capozziellos were not a party to the previous action. A We have adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. " ' "[T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a 'transaction,' and what groupings constitute a 'series,' are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage. . . ." ' " Orselet v. DeMatteo, 206 Conn. 542, 545-46, 539 A.2d 95 (1988); see Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 364-65, 511 A.2d 333 (1986); see also Nevada v. United States, 463 U.S. 110, 130-31 n.12, 103 S. Ct. 2906, 77 L. Ed. 2d 509 (1983); 1 Restatement (Second), Judgments § 24 (1982). In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action. See, e.g., Nevada v. United States, supra, 131-34; Capraro v. Tilcon Gammino, Inc., 751 F.2d 56, 57 (1st Cir. 1985). The complaint in Docket No. 14437 alleges that, since June 1,1986, and continuing into the future, the Capozziellos have operated and will operate a solid waste facility illegally at the Bridgeport site without obtaining a permit, as is required by General Statutes § 22a-208a, in violation of Public Acts 1989, No. 89-386. Moreover, the complaint alleges that the Capozziellos have violated General Statutes § 22a-430 by generating leachate, without a permit, thereby degrading the groundwater beneath the Bridgeport site. Finally, the complaint alleges that the Capozziellos' conduct has resulted or will result in unreasonable pollution, impairment or destruction of the natural resources of the state in violation of § 22a-16. In the final order that issued at the conclusion of the 1986 administrative action, the commissioner stated the finding that CBW had operated a solid waste transfer/resource recovery facility without the required permits. In light of this finding, the commissioner directed CBW to discontinue its operation of an unpermitted solid waste transfer/resource recovery facility by: (1) discontinuing waste deposit at the Bridgeport site within thirty days of the order; (2) retaining an exterminator and beginning a waste removal and vector extermination program within thirty days of the order; and (3) confirming with the commissioner within sixty days of the order that the waste removal and vector extermination program has been completed. Comparison of the 1986 action and the present action persuades us that the claims asserted therein are the same for the purpose of our res judicata analysis. Both focus on the operation of a solid waste facility at the Bridgeport site and the collateral environmental consequences of that operation. The claims, therefore, are related in "origin" and "space." Orselet v. DeMatteo, supra, 546. Additionally, the commissioner's primary "motivation"; id.; in bringing these actions is the same in both cases: to effect a cessation of environmentally unsound and illegal dumping of debris at the Bridgeport site. Our conclusion is not weakened by the fact that the present action relates to alleged misconduct committed after the final order in the 1986 action had been issued. Indeed, the commissioner's 1986 order sought to regulate future conduct, rendering the post-June 1, 1986 conduct, which the second action purports to reach, a subject of that order. To the extent metaphysically possible, therefore, the commissioner made a finding in the 1986 action that post-June 1,1986 violations would occur and ordered appropriate relief. Accordingly, we conclude, on the basis of the required pragmatic inquiry, that the claims in the present action and the 1986 action are the same. Indeed, the commissioner does not argue that the substantive nature of the claims in the two cases is different for res judicata purposes. Rather, the commissioner contends that res judicata is not a bar to the claims in Docket No. 14437 because the complaint in that case charged the Capozziellos with violating versions of statutes that had not been enacted as of June 1, 1986. This argument fails for two principal reasons. First, the two public acts relied upon by the commissioner, Public Acts 1989, Nos. 89-270 and 89-386, became effective October 1, 1989, and July 1, 1989, respectively. Accordingly, in charging conduct dating from June 1,1986, in the first, fourth and fifth counts of the complaint in Docket No. 14437, the commissioner relied on the preamendment versions of the relevant statutes. Second, the 1989 public acts cited by the commissioner did not make such substantive changes in the law that a claim asserted under them may, for that reason alone, be considered different from a claim asserted under the preamendment version. For example, the relevant change effected by Public Acts 1989, No. 89-270, was an increase in the maximum daily fine for violations of General Statutes § 22a-226 and 22a-438 from $10,000 to $25,000. As we have held, however, the preclusive effect of the doctrine of res judicata is triggered even if "the plaintiff is prepared in the second action . . . [t]o seek remedies or forms of relief not demanded in the first action." (Internal quotation marks omitted.) Orselet v. DeMatteo, supra, 546. Additionally, the primary effect of Public Acts 1989, No. 89-386 was to change the statutory definitions of certain terms. After reviewing these changes, we conclude that they did not change the scope of the statutes in any way relevant to the commissioner's charges against the Capozziellos. Accordingly, we hold that the claims in Docket No. 14437 and in the 1986 action are the same for the purpose of the doctrine of res judicata. B We now turn to the question whether the Capozziellos, the defendants in Docket No. 14437 and corporate officers of CBW, are in privity with CBW, the sole defendant in the 1986 action, for the purpose of our res judicata analysis. "While it is commonly recognized that privity is difficult to define, the concept exists to ensure that the interests of the party against whom collateral estoppel [or res judicata] is being asserted have been adequately represented because of his purported privity with a party at the initial proceeding." (Internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 304, 596 A.2d 414 (1991). Although "there is no bright line rule as to whether or not [corporate officers or] shareholders are in privity with their corporation for res judicata purposes"; Amalgamated Sugar Co. v. NL Industries, Inc., 825 F.2d 634, 640 (2d Cir.), cert. denied, 484 U.S. 992, 108 S. Ct. 511, 98 L. Ed. 2d 511 (1987); the Restatement (Second) of Judgments provides useful guidance. The Restatement (Second) of Judgments, § 59 asserts the general rule that "a judgment in an action to which a corporation is a party has no preclusive effects on a person who is an officer, director, stockholder, or member of a non-stock corporation . . . ." That general rule, however, is subject to an exception for closely held corporations: "If the corporation is closely held, in that one or a few persons hold substantially the entire ownership in it, the judgment in an action . . . against the corporation . is conclusive upon the [holder of ownership in it] as to issues determined therein [if,] in an action . . . against the corporation . . . the holder of its ownership . . . actively participated in the action on behalf of the corporation, unless his interests and those of the corporation are so different that he should have opportunity to relitigate the issue . . . ." 2 Restatement (Second), Judgments § 59 (3) (a) (1982). Several other jurisdictions have employed this rule. See, e.g., Capraro v. Tilcon Gammino, Inc., 751 F.2d 56, 59 (1st Cir. 1985); In re Beck Industries, Inc., 725 F.2d 880, 886 (2d Cir. 1984); Alaska Foods, Inc. v. Nichiro Gyogyo Kaisha, Ltd., 768 P.2d 117, 122 (Alaska 1989); Jantzen v. Baker, 131 Wis. 2d 507, 511, 388 N.W.2d 660 (1986). It is well established that the party asserting the affirmative defense of res judicata bears the burden of establishing its applicability. In this case, the trial court found that "[t]he defendants have failed to offer any evidence to establish the allegations of said special defenses." In the absence of the appropriate factual predicate, we must reject the Capozziellos' claim that they were in privity with CBW. Because the Capozziellos thus have not satisfied each element of the doctrine of res judicata, their claim that the commissioner's prosecution of Docket No. 14437 is precluded fails. Ill The Capozziellos claim that the trial court improperly imposed liability on them, jointly and severally with CBW, for the penalty in Docket No. 14435, in which CBW was the sole defendant. We agree. Although the Superior Court has general subject matter jurisdiction; see In re Tyvonne M., 211 Conn. 151, 157, 558 A.2d 661 (1989); see also General Statutes § 51-164s; it may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction. See, e.g., In re Baby Girl B., 224 Conn. 263, 288-91, 618 A.2d 1 (1992) (court may acquire personal jurisdiction by waiver or consent); Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 550-51, 610 A.2d 1260 (1992) (defect in process implicates personal jurisdiction). If a court lacks jurisdiction over a person, the court has no authority to award a judgment against that person. In this case, the trial court assessed a total penalty of $868,950 against the defendants jointly and severally in the three cases. The court expressly identified $417,200 of that total as the penalty imposed in Docket No. 14435 for the defendants' violation of the 1986 order for 1192 days, at $350 per day. Although CBW was the sole defendant in Docket No. 14435, the trial court justified its imposition of joint and several liability for the $417,200 penalty on CBW and the Capozziellos because of its finding that "all defendants are equally answerable and responsible to the Commissioner." Indeed, the judgment in each of the three cases states that "[t]he court . . . enters a single Judgment encompassing all three cases." The Capozziellos argue that the trial court lacked jurisdiction as to them in Docket No. 14435 because they were not parties to that action, which sought to enforce the 1986 administrative order issued against CBW. The commissioner contends, to the contrary, that the trial court properly imposed on the Capozziellos the penalty for violating the 1986 order because that penalty was part of a single judgment rendered after a consolidated trial of the three cases, in two of which the Capozziellos were defendants. Although the commissioner is correct that the three cases were consolidated for trial, such consolidation does not authorize the trial court to render a judgment against persons who are nonparties and upon whom process was not served. The complaint in Docket No. 14435 names CBW alone as the defendant, and the misconduct that formed the primary basis of the charges and the penalty imposed was CBW's violation of the 1986 order, to which the Capozziellos were not parties. Accordingly, the trial court lacked jurisdiction over the Capozziellos to impose the $417,200 penalty in Docket No. 14435 on them, jointly and severally with CBW, and we reverse the trial court judgment in that case as to the Capozziellos. IV The defendants also claim that the trial court abused its discretion by imposing a penalty in Docket No. 14436 for 651 days of continuing violations of General Statutes § 22a-32. We are not persuaded. The trial court found that the defendants had violated § 22a-32 by depositing debris in a wetland without a permit. The trial court imposed a $250 daily penalty for a period of 651 days for this violation, for a total of $162,750. The defendants do not dispute the daily amount of the penalty or the finding that they had illegally dumped debris in a wetland, but challenge only the number of days for which a penalty was imposed. Section 22a-32 prohibits all "regulated activity [from] be[ing] conducted upon any wetland without a permit." Under General Statutes § 22a-38 (13), the term "regulated activity" includes the depositing of material in a wetland. General Statutes § 22a-35 authorizes a maximum penalty of $1000 for each violation of § 22a-32 and states that "in the case of a continuing violation, each day's continuance thereof shall be deemed to be a separate and distinct offense." In light of these statutory definitions, the defendants' claim devolves into a contention that the act of leaving illegally deposited debris in a wetland does not constitute a continuing violation of the prohibition against the depositing of debris. The plain language of § 22a-32 and 22a-38 (13) prohibits the depositing of debris in a wetland. Although § 22a-35 authorizes a penalty for each day of a "continuing violation," it is not clear from the statutory language whether a continuing violation of § 22a-32 consists solely of depositing debris in a wetland on consecutive days or whether it also may include depositing debris in a wetland and allowing it to remain there. Because the language of the relevant statutory provisions does not yield a clear answer to the question of what constitutes a continuing violation, we turn for guidance to the legislative policy that underlies these provisions. See Rose v. Freedom of Information Commission, 221 Conn. 217, 227, 602 A.2d 1019 (1992). The legislature has expressed a strong public policy in favor of protecting and preserving the natural resources, and particularly the wetlands, of this state. "The inland wetlands and watercourses of the state of Connecticut are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have been endowed. The wetlands and watercourses are an interrelated web of nature essential to an adequate supply of surface and underground water; to hydrological stability and control of flooding and erosion; to the recharging and purification of groundwater; and to the existence of many forms of animal, aquatic and plant life. . . . The preservation and protection of the wetlands and watercourses from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare and safety of the citizens of the state." General Statutes § 22a-36; see Mario v. Fairfield, 217 Conn. 164, 168, 585 A.2d 87 (1991); Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 559-60, 552 A.2d 796 (1989); see also General Statutes § 22a-1. In light of this emphatic statement of the importance of protecting wetlands, we conclude that the legislature intended a broad definition of "continuing violation" and, accordingly, that that phrase, as used in § 22a-35, may include the illegal depositing of debris in a wetland as well as a subsequent period in which the illegally deposited debris remains in the wetland. Accordingly, the trial court did not abuse its discretion by assessing a penalty for the number of days of the illegal depositing of debris and for the number of days during which the debris subsequently remained at the site. The judgment in Docket No. 14435 is reversed as to Geno Capozziello and Russell Capozziello and that case is remanded to the trial court with direction to render judgment in favor of those defendants; the judgment in Docket No. 14436 is affirmed; and the judgment in Docket No. 14437 is affirmed. In this opinion Callahan, Borden and Norcott, Js., concurred. Although Russell Capozziello did not file a brief in this court, he filed a "Notice of Adoption of Arguments" seeking to adopt the claims presented to the court by Geno Capozziello and CBW. The latter two parties did not object to this adoption. In Docket No. 14436, Town Line Body Shop and Clifford Dayton were also named as defendants. The parties entered a stipulated judgment as to all claims against those two defendants, who are not parties to these appeals. Moreover, in Docket Nos. 14435 and 14436, the original defendants impleaded the city of Bridgeport, but later withdrew all claims against it. The city of Bridgeport is not a party to these appeals. General Statutes § 22a-18 provides in relevant part: "powers of COURT, (a) The court may grant temporary and permanent equitable relief, or may impose such conditions on the defendant as are required to protect the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction." General Statutes § 22a-226 provides in relevant part: "civil penalty. (a) Any person who violates any provision of this chapter or any regula tion, permit or order adopted or issued under this chapter, or any owner of land who knowingly permits such violations to occur on his land, shall be assessed a civil penalty not to exceed twenty-five thousand dollars, to be fixed by the court, for each offense. Each violation shall be a separate and distinct offense and, in the case of a continuing violation, each day's continuance thereof shall be deemed to be a separate and distinct offense. The attorney general, upon request of the commissioner, shall institute a civil action in the superior court for the judicial district of Hartford-New Britain to recover such penalty. "(b) If any person violates any provision of this chapter or any regulation, permit or order adopted or issued under this chapter, the commissioner may request the attorney general to bring an action in the superior court for the judicial district of Hartford-New Britain to enjoin such person from such violation and to order remedial measures to prevent, control or abate pollution. If two or more persons are responsible for a violation of any provision of this chapter or any regulation, permit or order adopted or issued under this chapter, such persons shall be jointly and severally liable under this subsection." General Statutes § 22a-435 provides in relevant part: "injunction. If any person or municipality fails to comply with any order to abate pollution, or any part thereof, issued pursuant to the provisions of section 22a-428, 22a-431 or 22a-433, and no request for a hearing on such order or appeal therefrom is pending and the time for making such request or taking such appeal has expired, the commissioner may request the attorney general to bring an action in the superior court for the judicial district of Hartford-New Britain to enjoin such person or municipality from maintaining such pollution and to comply fully with such order or any part thereof. All actions brought by the attorney general pursuant to the provisions of this section shall have precedence in the order of trial as provided in section 52-191." General Statutes § 22a-438 provides in relevant part: "forfeiture for violations, penalties, (a) Any person who or municipality which violates any provision of this chapter, or section 22a-6 or 22a-7 shall be assessed a civil penalty not to exceed twenty-five thousand dollars, to be fixed by the court, for each offense. Each violation shall be a separate and distinct offense and, in case of a continuing violation, each day's continuance thereof shall be deemed to be a separate and distinct offense. The attorney general, upon complaint of the commissioner, shall institute a civil action in the superior court for the judicial district of Hartford-New Britain to recover such penalty. In determining the amount of any penalty assessed under this subsection, the court may consider the nature, circumstances, extent and gravity of the violation, the person or municipality's prior history of violations, the economic benefit resulting to the person or municipality from the violation, and such other factors deemed appropriate by the court. The court shall consider the status of a person or municipality as a persistent violator. The provisions of this section concerning a continuing violation shall not apply to a person or municipality during the time when a hearing on the order pursuant to section 22a-436 or an appeal pursuant to section 22a-437 is pending. "(b) Any person who or municipality which wilfully or with criminal negligence violates any provision of this chapter, or section 22a-6 or 22a-7 shall be fined not more than twenty-five thousand dollars per day for each day of violation or be imprisoned not more than one year or both. A subsequent conviction for any such violation shall carry a fine of not more than fifty thousand dollars per day for each day of violation or imprisonment for not more than two years or both. For the purposes of this subsection, person includes any responsible corporate officer." Although the trial court found that all of the defendants had violated the 1986 order, that order was effective against only CBW. Moreover, CBW was the sole defendant in Docket No. 14435, in which the commissioner sought to enforce the 1986 order. The defendants also contend that, if the trial court's imposition of civil penalties for 651 days of continuing violations in Docket No. 14436 was proper, General Statutes § 22a-226 and 22a-438 violate the federal and state constitutions' guarantees of equal protection. The defendants challenge those provisions' facial validity as well as their validity as applied. The defendants' argument on this issue, however, comprises just one sentence in its brief, relies only generally on one case and is devoid of analysis. Accordingly, we decline to review this inadequately briefed claim. See Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 83 n.4, 612 A.2d 1130 (1992). Although all defendants join this argument, we consider only the Capozziellos to have raised it because CBW, which was not a defendant in Docket No. 14437, would have no standing to challenge the trial court's grant of the commissioner's motion to strike that case from the jury docket. The commissioner argues that the Capozziellos waived any entitlement to a jury because their jury claim was untimely. Because the commissioner did not rely on an alleged waiver in its motion to strike Docket No. 14437 from the jury docket, and because the trial court did not rely on an alleged waiver in its grant of the commissioner's motion to strike, we will not address the waiver claim here. General Statutes § 52-219 is not to the contrary. That provision states: "Whenever an action brought to recover damages and also to obtain equitable relief has been placed upon the docket as a jury case, the determination of the equitable issues raised by the pleadings shall not prevent a jury trial of the claim for damages, unless both parties agree in writing to waive a jury, or unless the determination of the equitable issues has necessarily adjudicated all the facts upon which the claim for damages rests." Section 52-219 applies in cases in which the action is properly on the jury docket. The question presented here, however, is whether this case should be on the jury docket. Accordingly, it is appropriate to apply our well established rules, developed by the courts to implement the constitutional right to a jury trial, to determine whether a jury trial is required at all. See Texaco, Inc. v. Golart, 206 Conn. 454, 458-59, 538 A.2d 1017 (1988); United States Trust Co. v. Bohart, 197 Conn. 34, 45, 495 A.2d 1034 (1985); Franchi v. Farmholme, Inc., 191 Conn. 201, 211, 464 A.2d 35 (1983); Dick v. Dick, 167 Conn. 210, 220, 355 A.2d 110 (1974). The seventh amendment to the United States constitution provides: "In Suits at common law . . . the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law." The Capozziellos concede that we are not bound in our state constitutional inquiry by the United States Supreme Court's decision in Tull v. United States, 481 U.S. 412, 107 S. Ct. 1831, 95 L. Ed. 2d 365 (1987). We disagree with the dissent's assertion that, under Connecticut common law prior to the adoption of article first, § 19, of the Connecticut Constitution in 1818, actions for civil penalties were tried to a jury. First, we note that the Capozziellos do not make this historical claim. Rather, their contention that they are entitled to a jury trial on the claim for civil penalties in Docket No. 14437 relies upon the alleged analogy between an environmental action for civil penalties and an action in debt. Second, we do not read Pettis v. Dixon, 1 Kirby (Conn.) 179 (1786), to support the dissent's claim. That case involved an action in debt predicated on an alleged violation of a statute requiring the payment of duties on goods imported into the state. In light of the description in our case law and in Swift's 1796 treatise of an action in debt as involving a sum certain; see, e.g., Anderson v. Bridgeport, 134 Conn. 260, 264, 56 A.2d 650 (1947); 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) p. 127; we read Pettis as a suit to recover the unpaid duties, not to recover civil penalties. Finally, we decline the dissent's suggestion that an 1810 federal case construing a federal statute constitutes part of our state's common law, and thus part of current state constitutional law, merely because it was included in our state court reporter. We thus conclude that United States v. Allen, 4 Day (Conn.) 474 (1810), could not form a basis for recognizing that, under Connecticut's common law before 1818, actions for civil penalties were tried to juries. Although both the Capozziellos and CBW join this claim, we consider only the Capozziellos to have raised it because CBW, which was not a defendant in Docket No. 14437, would have no standing to assert a res judicata defense against the prosecution of that action. Citing Local 1219 v. Connecticut Labor Relations Board, 171 Conn. 342, 370 A.2d 952 (1976), the commissioner also asserts that the doctrine of res judicata applies differently to regulatory agencies' actions than in other contexts. Local 1219 does not, however, support this contention. There, we held that "res judicata does not necessarily apply to administrative agencies where the situation is virtually altered between the time of the first judgment or order and the time of the second." (Emphasis added.) Id., 356. Although we stated that rule in terms of administrative agencies in Local 1219 because of the facts of that case, the rule that res judicata may not apply when there has been a significant change in circumstances between the time of the first action and the time of the second is generally applicable. Accordingly, contrary to the commissioner's assertion, we did not intend in Local 1219 to shield administrative agencies from application of the doctrine of res judicata if such application is otherwise appropriate. The commissioner has not argued that such a significant change in circumstances has occurred. The pleadings in the 1986 action, however, are not part of the record on appeal, and, therefore, we conduct our inquiry without them. For example, the third count of the complaint in Docket No. 14437 is predicated on Public Acts 1989, No. 89-386, § 2, which amends General Statutes § 22a-208c to prohibit all persons from "receivling], disposfing] of, or process[ing] solid waste or transportpng] solid waste for disposal or processing at any solid waste facility . . . unless such facility . . . complies with the provisions of section 22a-208a of the general statutes . . . ." The commissioner's claim that this amendment creates a substantial change in the law is belied by the fact that, in count one of the complaint, the commissioner charged that, from June 1, 1986, to June 30, 1989, before the amendment became effective, the defendants had violated General Statutes § 22a-207 et seq. by, without a permit, "acceptpng] and processpng] solid waste at 329 Central Avenue in Bridgeport, Connecticut by receiving the waste . . . [and] transferring the solid waste] to vehicles for removal elsewhere." Although the current version and the preamendment version may not be identical, we conclude that, for the purpose of the commissioner's claims against the Capozziellos, those versions are the same. This case would present an unusual application of the doctrine of res judicata insofar as the Capozziellos are attempting to prevent the commissioner from relitigating claims on which the commissioner was successful in the 1986 action. Although a party would generally not seek to relitigate a claim on which he or she has prevailed, such relitigation in this case would nonetheless benefit the commissioner because it might accomplish compliance with the applicable environmental requirements, whereas the previous judgment against CBW apparently did not accomplish this goal. Moreover, we note that the primary purpose of the privity requirement-assurance that the party against whom the defense is asserted had an ade quate opportunity to be heard in the first action—is not implicated here, because the Capozziellos are seeking the benefit of the privity requirement. In this case, however, because the commissioner contends that there is no privity between the Capozziellos and CBW, we must assure that the parties who assert the defense had an adequate opportunity to participate in the previous litigation. In a sense, therefore, the privity requirement may operate to protect the commissioner. Finally, we note that none of the parties has argued that we should abandon the privity requirement under the unique circumstances of this case. Other courts have adopted a more expansive definition of privity for closely held corporations, finding privity between a corporation and an individual if that individual is the sole corporate shareholder, has full ownership of the corporation, and exercises complete control of its affairs, without regard to the individual's involvement in the previous litigation to which the corporation was a party. See In re Gottheiner, 703 F.2d 1136, 1140 (9th Cir. 1983); Hofsommer v. Hofsommer Excavating, Inc., 488 N.W.2d 380, 384 (N.D. 1992). Although all defendants join this claim, we consider only the Capozziellos to raise it because CBW would have no standing to challenge the trial court's imposition of penalties on the Capozziellos. Because the trial court expressly assessed a separate penalty in each action, we reject the commissioner's contention that the defendants failed to preserve an adequate record for review of this claim on appeal because they did not move the trial court for an articulation on apportionment of the penalty. The commissioner moved for articulation of the trial court's basis for imposing civil penalties. In its denial of that motion, the trial court indicated that it had found the defendants jointly and severally liable for the total amount of penalties imposed in the three cases because "the three cases were consolidated" and "the court [had] assessed] all the evidence in the three consolidated cases together . . . ." "Material" is defined as "any substance, solid or liquid, organic or inorganic, including, but not limited to . . . debris . . . ." General Statutes § 22a-38 (6). The defendants also suggest that the absence of an existing administrative order or judicial decision prohibiting the depositing and maintenance of debris at the Monroe site should have prevented the trial court from punishing that conduct. This argument is unpersuasive, however, because it equates legal conduct with conduct that an agency or a court has not previously found to be illegal and has not enjoined. Because the defendants' conduct that formed the basis of Docket No. 14436 was prohibited by statute at the time it occurred, the trial court properly punished the defendants for it.

The defendant Rose Marie Cornaglia's petition for certification for appeal from the Appellate Court, 33 Conn. App. 549 (AC 12098), is granted, limited to the following issue: "Assuming that a finding by the trial court was necessary to enable appellate review of the trial court's decision, should the Appellate Court have remanded to the trial court for articulation of the reasons for its decision?"

The plaintiff's petition for certification for appeal from the Appellate Court (AC 13085) is denied.

The defendant's petition for certification for appeal from the Appellate Court, 33 Conn. App. 432 (AC 10501), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 34 Conn. App. 191 (AC 12232), is denied.

Katz, J. In this appeal, the commissioner of the department of income maintenance (commissioner), Audrey Rowe, appeals from the trial court's judgment setting aside the commissioner's denial of general assistance benefits to the plaintiff, Nadejda Barannikova, on the ground that the statute and the implementing regulation on which the denial was based violated the plaintiffs right to the equal protection of the laws as guaranteed by the fourteenth amendment to the United States constitution. The commissioner argues that the trial court improperly determined that the state statute and the regulation constituted an invidious distinction based on alienage and improperly subjected them to strict scrutiny. The commissioner contends that because the state law parallels a federal law it did not constitute an invidious state classification and, like its federal counterpart, should have been rationally reviewed. Alternatively, the commissioner asserts that the state law and the regulation do not classify on the basis of alienage. Conversely, the plaintiff claims that the statute and the regulation are purely state welfare eligibility requirements that affect only aliens and, as such, are inherently suspect. The plaintiff further contends that the state action in this case should not be treated as though it was a federal action because it is neither required nor authorized by federal law. We agree with the plaintiff and therefore affirm the judgment of the trial court. The following facts are undisputed. The plaintiff, her husband, Vladimir Barannikova, and their three children emigrated from the former Soviet Union to this country in October, 1989. At that time, they were lawfully admitted as resident aliens through the sponsorship of Lida Klever, the plaintiff's sister-in-law. As a condition of the Barannikovas' admission to the United States, Klever signed an affidavit of support by which she pledged to support the family for a period of three years following their entry. In February, 1990, the plaintiff separated from her husband and, later that summer, filed for divorce in California. In September of the same year, the plaintiff and her two minor children moved from California to Greenwich, where they took up permanent residence. The plaintiff's divorce from her husband was finalized in January, 1991. Since the finalization of the divorce, neither the plaintiff nor her children have received any support from Klever, who resides in Los Angeles, California, or from Vladimir. On March 24, 1992, the plaintiff filed an application for general assistance benefits on behalf of herself and her two minor children with the town of Greenwich (town). The application was granted subject to receipt by the town of financial information from Klever. On April 9, 1992, pursuant to General Statutes § 17-273 (d) and General Assistance Policy Transmittal, G.A. 91-6, § 5, the town sought financial infor mation from Klever in order to determine whether the plaintiff would be eligible for general assistance benefits. Because Klever refused to cooperate, the plaintiff's application for general assistance was denied. Thereafter, the plaintiff requested and was granted two fair hearings to protest the denial of her application. Pursuant to General Statutes § 17-292d and 17-292e, the plaintiff first had a hearing before the town and then before the state department of income maintenance (department). The hearing officers at each hearing upheld the town's denial of the plaintiff's application on the ground that she had failed to submit information necessary to determine eligibility. The missing information was Klever's income data, which Klever had refused to provide as a result of hostility that had developed between herself and the plaintiff. The plaintiff appealed from the decisions of the hearing officers to the Superior Court pursuant to General Statutes § 17-2b and 4-183. The plaintiff challenged the decisions on the grounds that General Statutes § 17-273 (d) and § 17-3a-14 (D) (8) of the Regulations of Connecticut State Agencies are unconstitutional under the equal protection and due process clauses of the fourteenth amendment to the United States constitution. She requested that the trial court reverse the administrative decisions of the state and town hearing officers, and remand her application to the town for a determination of eligibility and provision of benefits, including retroactive benefits. The trial court concluded that the statute and the regulation at issue determined eligibility for general assistance benefits using classifications based on alienage. The court rejected the commissioner's claim, reviewed on this appeal, that the general assistance sponsor income deeming scheme should be subjected to rational basis review because it parallels the federal sponsor income deeming scheme enacted under a federally sponsored welfare program, namely Aid to Families with Dependent Children (AFDC). See 42 U.S.C. § 601 et seq. (1991). Noting that federal law regarding aliens is deferentially reviewed "due to the broad constitutional power of Congress to regulate immigration; see, e.g., Mathews v. Diaz, 426 U.S. 67, 85-87, [96 S. Ct. 1883, 48 L. Ed. 2d 478] (1976)"; see also footnote 24; the trial court determined that the state statutory and regulatory provisions are subject to strict scrutiny because they discriminate on the basis of alienage. Applying strict scrutiny, the trial court concluded that the governing statute and the regulation violate the equal protection clause of the fourteenth amendment to the United States constitution. Accordingly, the court rendered judgment for the plaintiff and remanded the case for a determination of eligibility. The commissioner appeals directly to this court from the judgment of the trial court pursuant to General Statutes § 51-199 (b), claiming that: (1) the trial court improperly subjected General Statutes § 17-273 (d) and § 17-3a-14 (D) (8) of the Regulations of Connecticut State Agencies to strict scrutiny; and (2) the statute and the regulation are rationally related to a legitimate governmental interest. We affirm the judgment of the trial court. I General assistance is a state run program designed to aid individuals and their families who have insufficient income or assets to meet their essential needs. See General Statutes § 17-272 through 17-292Í. It is locally funded and managed by the 169 cities and towns of the state. General Statutes § 17-273 (a). The department oversees the administration of the program and reimburses 85 percent of the towns' program costs without any federal matching funds or assistance whatsoever. Regs., Conn. State Agencies § 17-3a-ll (D). The commissioner is authorized by General Statutes § 17-3a to adopt regulations establishing standards for the granting of general assistance benefits and the level of financial assistance to be provided. Currently, the level of benefits is set at $314 per month for a single employable person and $356 per month for a single unemployable person. General Statutes § 17-3a (a). An applicant must be needy in order to qualify for general assistance benefits. For purposes of general assistance eligibility, a person is in need if his or her available income and assets are insufficient to meet his or her essential needs. See footnote 14. When determining what income and assets are available to the applicant, the income and assets of every member of the unit applying for aid are applied against budgeted needs, including the income and assets of minor children. In addition, certain other income and assets not actually in the possession of the members of the applicant unit are deemed available to the applicant. Regs., Conn. State Agencies § 17-3a-14 (B) (4). General Statutes § 17-273 (d) provides that when an applicant for general assistance who is admitted to the United States under color of law has an individual sponsor, the income of the sponsor is deemed to be available to the applicant for purposes of determining eligibility for a period of three years from the date the applicant enters the country. See footnote 2. Section 17-3a-14 (D) (8) of the Regulations of Connecticut State Agencies implements the statutory deeming policy. See footnote 3. The regulation provides that if the sponsor fails or refuses to provide information to the town on the sponsor's income, the application for general assistance will be denied for failure to provide information necessary to determine eligibility. Although the federal government requires such a pledge for admission to the country in certain instances, the parties in this case agree that the affidavit does not constitute a legally enforceable promise of support. The general assistance deeming scheme, thus, treats a portion of the sponsor's income as available to the applicant regardless of whether the income is actually received by or available to the applicant. Against this legal background, the commissioner's principal claim is that the trial court improperly subjected General Statutes § 17-273 (d) and § 17-3a-14 (D) (8) of the Regulations of Connecticut State Agencies to strict scrutiny under the equal protection clause of the fourteenth amendment to the United States constitution. The commissioner argues that the statute passes constitutional muster under rational basis review. The commissioner contends that the state statute and the regulation, which parallel a federal statute, should be subjected to rational review because federal laws concerning immigration and naturalization are subjected only to rational review. The commissioner also contends that the sponsor income deeming scheme should be subject to rational basis review because it does not create a classification based on alienage, but one based on sponsorship. We disagree with both contentions. The equal protection clause of the fourteenth amendment limits the power of the state to enact discrimina tory statutes. It provides that, "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const., amend. XIY, § 1. "It has long been settled, and it is not disputed here, that the term 'person' in this context encompasses lawfully admitted resident aliens as well as citizens of the United States and entitles both citizens and aliens to the equal protection of the laws of the State in which they reside. Yick Wo v. Hopkins, [118 U.S. 356, 369, 6 S. Ct. 1064, 30 L. Ed. 220 (1886)]; Truax v. Raich, [239 U.S. 33, 39, 36 S. Ct. 7, 60 L. Ed. 131 (1915)]; Takahashi v. Fish & Game Commission, [334 U.S. 410, 420, 68 S. Ct. 1138, 92 L. Ed. 1478 (1948)]." Graham v. Richardson, 403 U.S. 365, 371, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971). Although the equal protection clause directs that "all persons similarly circumstanced shall be treated alike"; F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S. Ct. 560, 64 L. Ed. 989 (1920); it "does not require things which are different in fact or opinion to be treated in law as though they were the same." Tigner v. Texas, 310 U.S. 141, 147, 60 S. Ct. 879, 84 L. Ed. 1124 (1940). Generally, the states retain broad discretion to determine what is different and what is the same. Plyler v. Doe, 457 U.S. 202, 216, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982). In most cases, therefore, a state legislature is free to classify as long as the distinction it draws "bears some fair relationship to a legitimate public purpose." Id. Nonetheless, the United States Supreme Court has determined that in order to carry out the constitutional mandate of equality a less deferential standard must be applied to certain "presumptively invidious" classifications such as alienage, race and national ori gin. Id. The court has determined that "[tjhese factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy—a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest. McLaughlin v. Florida, [379 U.S. 184, 192, 85 S. Ct. 283, 13 L. Ed. 2d 222 (1964)]; Graham v. Richardson, [supra, 403 U.S. 365]." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S. Ct. 3216, 87 L. Ed. 2d 267 (1985); see also Korematsu v. United States, 323 U.S. 214, 216, 65 S. Ct. 193, 89 L. Ed. 194 (1944). A It is against this backdrop of fourteenth amendment equal protection jurisprudence that we address the commissioner's first claim, that because federal laws regarding aliens have been deferentially reviewed, state laws that parallel federal law should be similarly reviewed. Although the standard of review of legislative classifications regarding aliens has differed in a number of cases, we reject the commissioner's argument because the governmental interests and constitutional concerns that have led the United States Supreme Court to afford deferential review to federal laws based on alienage are not at issue when, as here, a state imitates the federal government without authorization to do so. Indeed, "[t]he standard of review has varied depend ing upon the governmental interest at stake and the purpose served by such a classification." El Souri v. Dept. of Social Services, 429 Mich. 203, 208, 414 N.W.2d 679 (1987). The court's decisions regarding alienage classifications can be divided into three categories. First, state or local laws that classify on the basis of alienage to determine eligibility to receive economic benefits are inherently suspect and are thus subject to strict judicial scrutiny under the equal protection clause of the fourteenth amendment. Graham v. Richardson, supra, 403 U.S. 372-73. The court has recognized that, regarding state welfare policy, there is little or no reason for treating resident aliens differently from persons who are citizens of the United States. Id.; see Toll v. Moreno, 458 U.S. 1, 20, 102 S. Ct. 2977, 73 L. Ed. 2d 563 (1982) (Blackmun, J., concurring); Mathews v. Diaz, supra, 426 U.S. 85. For example, there is no rational basis for utilizing such a distinction in order to protect the state fisc because resident aliens are subject to state and federal taxation in the same manner as resident citizens. See, e.g., Nyquist v. Mauclet, 432 U.S. 1, 12, 97 S. Ct. 2120, 53 L. Ed. 2d 63 (1977). The court has also recognized that resident aliens are not distinct from citizens in terms of expected duration of residence within a given state. See, e.g., Sugarman v. Dougall, 413 U.S. 634, 645, 93 S. Ct. 2842, 37 L. Ed. 2d 853 (1973) (noting similarity between resident aliens and citizens regarding payment of taxes, service in armed forces and duration of residency). State or local welfare laws, therefore, may classify on the basis of alienage only if the classifications are necessary to promote a compelling governmental interest. Second, the court has carved out a political functions exception to the application of strict scrutiny to state and local laws. When such state or local laws based on alienage relate to the allocation of political power or governmental positions, the laws will not offend the equal protection clause if they are rationally related to a legitimate governmental interest. See, e.g., Bernal v. Fainter, 467 U.S. 216, 220, 104 S. Ct. 2312, 81 L. Ed. 2d 175 (1984) (citizenship as condition of employment rationally reviewed when position is "intimately related to the process of democratic self-government"); Cabell v. Chavez-Salido, 454 U.S. 432, 440, 102 S. Ct. 735, 70 L. Ed. 2d 677 (1982) (classification must involve a state elected or important nonelected officer who participates " 'directly in the formulation, execution, or review of broad public policy' "); Ambach v. Norwich, 441 U.S. 68, 75, 99 S. Ct. 1589, 60 L. Ed. 2d 49 (1979) (law rationally reviewed when classification is related to state function involving operation of state as governmental entity). This "narrow exception" to the general rule is based on the concept that "within broad boundaries a State may establish its own form of government and limit the right to govern to those who are full-fledged members of the political community." Bernal v. Fainter, supra, 221. In this context, citizenship is a reasonable basis upon which to make distinctions because aliens are "persons who have not become part of the process of democratic self-determination." Id. As the court has been careful to note, however, its conclusion that restrictions serving a political function should be reviewed deferentially does not undermine its earlier position that restrictions on resident aliens that primarily affect economic interests are sub ject to heightened judicial scrutiny. Id., 221, 222 n.7; Cabell v. Chavez-Salido, supra, 439; Ambach v. Norwich, supra, 75. Third, as the commissioner correctly argues in the present case, the United States Supreme Court has applied rational basis review to a federal welfare law, 42 U.S.C. § 1395o (2) (1970 Ed., Sup. IV), that conditioned a resident alien's eligibility for federal medicare benefits on admission for permanent residence in the United States and a five year period of continuous residence. Mathews v. Diaz, supra, 426 U.S. 67. The court in Mathews held that the due process clause of the fifth amendment to the United States constitution did not prohibit such a classification by the federal government. The court stated that "[tjhe reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization." Id., 81-82. The court reasoned that because "the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Fed eral Government," separation of powers concerns require deference to the decisions of the co-equal branches in these matters. Id., 81. Additionally, the court noted that federal legislation that treats aliens differently from citizens is not presumptively invidious because, although state classifications on the basis of alienage have "no apparent justification . . . a comparable classification by the Federal Government is a routine and normally legitimate part of its business." Id., 85. Consequently, the court deferentially reviewed the federal statute, § 1395o (2), and found it constitutional. In its decision in Mathews, however, the court distinguished Graham v. Richardson, supra, 403 U.S. 365, stating: "That case holds that state statutes that deny welfare benefits to resident aliens, or to aliens not meeting a requirement of durational residence within the United States, violate the Equal Protection Clause of the Fourteenth Amendment and encroach upon the exclusive federal power over the entrance and residence of aliens." (Emphasis added.) Mathews v. Diaz, supra, 426 U.S. 84. For the purposes of the present case, the relevance of this distinction lies in the fact that the equal protection analysis used in Graham, "involves significantly different considerations because it concerns the relationship between aliens and the States rather than between aliens and the Federal Government." Id., 84-85; see footnote 24. After Mathews, therefore, the rule under the fourteenth amendment continues to be that state law classifications regarding eligibility for welfare benefits based on alienage are unconstitutional unless they are narrowly tailored to achieve a compelling government interest. In the present case, despite the fact that the law at issue is a state statute determining eligibility for welfare benefits on the basis of alienage within an entirely state funded and implemented program, the commissioner contends that the state's sponsor income deeming regulation should be reviewed deferentially because it parallels federal welfare law. In support of her argument, the commissioner primarily relies on two United States Supreme Court cases: De Canas v. Bica, 424 U.S. 351, 96 S. Ct. 933, 47 L. Ed. 2d 43 (1976); and Plyler v. Doe, supra, 457 U.S. 202. The commissioner argues that these cases suggest that a state statute concerning aliens that is consistent with or mirrors a federal statute or policy, should be subject to the same standard of review as the federal law under an equal protection analysis. To the contrary, these cases indicate the court's willingness to conclude that particular state statutes are not unconstitutional under the supremacy clause because they do not conflict with the federal government's exercise of its plenary power within the realm of immigration and naturalization, or are not preempted by existing federal law. The commissioner's argument, therefore, must fail because both cases involved different constitutional challenges that implicated different interests and concerns regarding both legislative motivation and judicial review than does our review of the state action in the present case under an equal protection analysis. We are not concerned in this case with whether the state's alienage based classification conflicts with federal policy or power, but rather with whether the state has conditioned welfare benefits on a presumptively invidious trait in violation of the equal protection clause of the fourteenth amendment to the United States constitution. In De Canas v. Bica, supra, 424 U.S. 352-53, the court addressed the issue of whether a California statute, prohibiting employers from knowingly hiring illegal aliens if that employment would adversely affect lawful resident workers, was "unconstitutional either because it [was] an attempt to regulate immigration and naturalization or because it [was] pre-empted under the Supremacy Clause, Art. VI, cl. 2, of the Constitution, by the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq., the comprehensive federal statutory scheme for regulation of immigration and naturalization." The court upheld the statute on two grounds. First, the statute did not violate the supremacy clause because neither the plain language nor the legislative history of the INA revealed that the federal government intended thereby to preempt the states' ability to regulate the employment of their residents. Id., 356. Second, because the statute did not have a direct impact on immigration, it did not unconstitutionally encroach on the "[p]ower to regulate immigration [which] is unquestionably exclusively a federal power." Id., 354. The court's conclusion that a state law that adopts federal standards does not violate the supremacy clause or the constitutional grant of power to regulate immigration does not implicate the validity of such a law under the equal protection clause of the fourteenth amendment. The fact that a state may act within a given realm provided it does not conflict with federal legislation does not also imply that when so acting it may make invidious distinctions without regard to the constitutional equal protection guarantee. Contrary to the commissioner's argument, therefore, the court's decision in De Canas does not suggest that, if a state law is consistent with a federal law, both should be subject to the same deferential level of scrutiny under an equal protection analysis, despite their differing interests. The commissioner relies on Plyler v. Doe, supra, 457 U.S. 202, for the proposition that her broad reading of De Canas v. Bica, supra, 424 U.S. 351, has been incorporated into the federal equal protection jurisprudence. In Plyler v. Doe, supra, 223, the United States Supreme Court considered the constitutionality of a Texas statute that withheld state funds from local school districts for the education of children who were not legally admitted to the United States and allowed the school districts to deny such children enrollment. Although the court declined to recognize either "illegal aliens" as a suspect class or education as a fundamental right, it concluded that the statute violated the equal protection clause of the fourteenth amendment of the United States constitution. The court reasoned that the state's law "imposes a lifetime hardship on a discrete class of children not accountable for their disabling status," and therefore "can hardly be considered rational unless it furthers some substantial goal of the State." Id., 223, 224. While discussing the suspect status of illegal aliens and the plenary federal power to regulate immigration and naturalization, the court stated in a footnote: "No State may independently exercise a like power. But if the Federal Government has by uniform rule prescribed what it believes to be appropriate standards for the treatment of an alien subclass, the States may, of course, follow the federal direction. See De Canas v. Bica, [supra, 424 U.S. 351]." Id., 219 n.19. The commissioner argues, on the basis of that language, that under its equal protection analysis the United States Supreme Court will deferentially review a state law regarding resident aliens as long as that law is consistent with a federal law. This argument lacks merit for two reasons. First, without any independent equal protection analysis, the court cites as authority De Canas v. Bica, supra, 424 U.S. 351, which, as discussed above, did not involve an equal protection claim, but rather entertained a supremacy clause challenge to a state law involving resident aliens. As a result, the quoted language must be read to delineate the extent to which the states may legislate with respect to illegal aliens without violating the supremacy clause or interfering with Congress' exercise of its plenary power with respect to immigration and naturalization. Second, Plyler v. Doe, supra, 457 U.S. 226, did not involve a state statute that was authorized by federal law or followed a uniform federal rule prescribing the appropriate standards for the treatment of an alien subclass. The quoted language, thus, cannot be considered a controlling pronouncement of the court's opinion in a case where the federal government has authorized disparate treatment of resident aliens by the states. Therefore, the language relied on by the commissioner must be read either as dictum regarding the equal protection status of illegal aliens in a case where the state action is authorized by federal law, or more appropriately as dictum regarding federal preemption doctrine as applied to state laws that classify such aliens. Moreover, insofar as Plyler v. Doe, supra, 457 U.S. 202, can be read to require deferential review of a state law that is explicitly authorized by Congress or carries out a uniform federal policy regarding immigration, it does not advance the commissioner's argument in this case. In order to implicate the federal separation of powers concerns that motivated the court in De Canas v. Bica, supra, 424 U.S. 351, it would not necessarily suffice for the provisions of state law to parallel those contained in federal law, if federal law has not authorized or required such state legislation. As the com missioner conceded at oral argument, the federal AFDC deeming laws do not contain any language authorizing or requiring the states to adopt similar laws regarding wholly state funded and administered welfare programs. Furthermore, the various federal deeming laws do not constitute a uniform federal immigration policy that a sponsor's income shall be attributed to a sponsored resident alien when determining that resident alien's eligibility for economic benefits distributed by the government. As the plaintiff correctly observes, Congress has chosen not to extend the AFDC deeming laws to all other federal benefits programs for which sponsored resident aliens are eligible. Minino v. Perales, 79 N.Y.2d 883, 885, 589 N.E.2d 385, 581 N.Y.S.2d 162 (1992). In the absence of a blanket policy of sponsor income deeming for all federal benefits programs, we cannot conclude that Congress impliedly has authorized or required the states to deem sponsor income to be available for resident aliens for purposes of eligibility for state run and funded benefits programs. Accordingly, we are unpersuaded by the commissioner's claim that the United States Supreme Court has created an exception, for state laws that parallel federal laws, to the general rule that alienage-based state welfare laws are subject to strict scrutiny under the equal protection clause of the fourteenth amendment. The commissioner has also not convinced us that such an exception is implied or warranted under existing federal law. We conclude, therefore, that Graham v. Richardson, supra, 403 U.S. 365, and its progeny control this case. B We next address the commissioner's alternate claim that the statutory scheme in this case is not based on alienage and should therefore be rationally reviewed. The commissioner argues that the statute classifies individuals "on the basis of [a] perceived need for assistance as a result of sponsorship and is subject to rational review, just as any other state welfare benefit statute." (Emphasis in original.) In support of her argument, the commissioner relies on Geduldig v. Aiello, 417 U.S. 484, 496 n.20, 94 S. Ct. 2485, 41 L. Ed. 2d 256 (1974), in which the United States Supreme Court held that a state's statutory exclusion of pregnancy related complications from a list of compensable disabilities, for purposes of a state run insurance program, was not a classification based on gender. The court reasoned that the statute created two classes of individuals, nonpregnant and pregnant persons, both of which had female members. As a result, the court concluded that the "program [did] not exclude anyone from benefit eligibility because of gender but merely remove[d] one physical condition—pregnancy—from the list of compensable disabilities." Id. Similarly, the commissioner argues that because the state statute and regulation do not burden all aliens but only those that are sponsored, they do not result in a classification based on alienage. Three years after the court's decision in Geduldig v. Aiello, supra, 417 U.S. 484, the court rejected identical reasoning as applied to a state statute that barred resident alien students from a state run financial aid program unless they had filed an application to become a citizen or had filed a statement of intent to apply for United States citizenship once eligible. Nyquist v. Mauclet, supra, 432 U.S. 1. Relying on Graham v. Richardson, supra, 403 U.S. 365, the court stated: "The important points are that [the statute] is directed at aliens and that only aliens are harmed by it. The fact that the statute is not an absolute bar does not mean that it does not discriminate against the class." Nyquist v. Mauclet, supra, 10. Accordingly, the court then sub jected the state's law to strict scrutiny and concluded that it violated the equal protection clause of the fourteenth amendment. Applying these principles to the present case, we reject the commissioner's argument. General Statutes § 17-273 (d) and § 17-3a-14 (D) (8) of the Regulations of Connecticut State Agencies are by their specific terms directed only at aliens. In addition, the fact that their reach encompasses only sponsored aliens is irrelevant, as only aliens will be affected by them. We conclude, therefore, that § 17-273 (d) and § 17-3a-14 (D) (8) create a presumptively invidious state law classification based on alienage. As such, the statute and regulation are subject to strict scrutiny under the equal protection clause of the fourteenth amendment. II Our inquiry does not end with the determination that the statute and regulation should be strictly scrutinized. Although the commissioner has never asserted that the scheme satisfies strict scrutiny; see footnote 13; we must nevertheless determine whether the state's deeming scheme is closely related to the accomplishment of a compelling governmental interest. In her briefs to this court and at oral argument, the commissioner has claimed only that the statute is rationally related to a legitimate government interest. The commissioner argues that the government has a legitimate interest in preserving the "economic and social welfare of the state." She further contends that deeming sponsor income to be available for a sponsored alien is a rational means by which to achieve this goal because it conditions eligibility on "a reasonable assumption of support that may not be accurate in every case." Applying strict scrutiny to the state's deeming scheme, we conclude that the claimed governmental interest is not compelling. Accordingly, we decide that the trial court properly concluded that General Statutes § 17-273 (d) and § 17-3a-14 (D) (8) of the Regulations of Connecticut State Agencies are unconstitutional. In order to pass strict scrutiny, state action must be closely related to a compelling governmental interest. See, e.g., Graham v. Richardson, supra, 403 U.S. 376. It is well established that "a state has a valid interest in preserving the fiscal integrity of its programs. It may legitimately attempt to limit its expenditures, whether for public assistance, public education, or any other program. But a State may not accomplish such a purpose by invidious distinctions between classes of its citizens." Shapiro v. Thompson, 394 U.S. 618, 633, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969). In Graham v. Richardson, supra, 375, the court extended this reasoning to a state law distinction based on alienage, stating: "Since an alien as well as a citizen is a 'person' for equal protection purposes, a concern for fiscal integrity is no more compelling a justification for the questioned classification in these cases than it was in Shapiro." The court further noted that preservation of the state fisc was not a compelling interest particularly in light of the fact that aliens, like citizens, pay taxes that contribute to the state's programs and may live in the state for extended periods working and contributing to the state's economic development. Id., 376. Accordingly, the commissioner's claim that the state's deeming scheme is justified by a desire to preserve the economic welfare of the state is not compelling and is inadequate to withstand the plaintiff's equal protection challenge. We conclude, therefore, that the trial court properly determined that General Statutes § 17-273 (d) and § 17-3a-14 (D) (8) of the Regulations of Connecticut State Agencies violate the equal protection clause of the fourteenth amendment to the United States constitution. The judgment is affirmed. In this opinion the other justices concurred. The town of Greenwich and the commissioner of the department of income maintenance have filed separate appeals in this case. The town, acting through its legal counsel, has authorized the commissioner to represent its interests in this appeal. As a result, only one set of briefs was filed by the appellants. We also note that the department of income maintenance has been renamed the department of social services effective July 1, 1993. Public Acts 1993, No. 93-262, § 1. General Statutes § 17-273 (d) provides: "On and after September 4,1991, if an individual sponsors a person admitted as a resident of the United States, such individual's income shall be deemed to be available for the support of the person for three years from the date the person enters the United States." Section 17-3a-14 (D) (8) of the Regulations of Connecticut State Agencies provides in relevant part: "8. Sponsors of Non-Citizens "A sponsor is an individual (or organization) who, through execution of an affidavit, agrees to support the non-citizen for a period of three years from his/her date of entry into the United States. This affidavit, or similar agreement, is a condition of the non-citizen's entry into the United States. (Refer to subsection E for special conditions concerning refugee sponsors.) "a. Deeming the Sponsor's Income "Within four working days, the local welfare official must obtain verification from the sponsor of the amount of all his/her income, including that of his/her spouse if they live together. The town may accept pay stubs or other employer verifications or may use the W-1613, 'General Assistance Certificate For Disclosure of Gross Wages, Salary or Commission Paid' in order to secure the necessary financial information. (Refer to Section VI for acceptable verification of earnings or self-employment.) The failure or refusal to document the income of the sponsor and/or his/her spouse will result in the denial or discontinuance of the non-citizen's General Assistance, as appropriate." The substance of General Assistance Policy Transmittal, G.A. 91-6, § 5, has been codified at § 17-3a-14 (D) (8) of the Regulations of Connecticut State Agencies. We, therefore, treat the plaintiffs appeal as claiming that the regulation is unconstitutional, and refer to the regulations rather than the policy transmittal in the remainder of this opinion. General Statutes § 17-292d provides: "fair hearings, application. (a) Any person whose application for assistance under sections 17-273 and 17-292 is rejected or whose receipt of such assistance is terminated or modified, except as provided in subsection (c) of this section, shall have the right to a fair hearing to review such decision in accordance with sections 17-292e and 17-292f, provided that the town has held a hearing in accordance with this section. Any such person shall be notified in writing immediately of a rejection, termination or modification of such assistance and of the right to such hearings. "(b) Within ten working days of an action to reject, terminate or modify his assistance, except as provided in subsection (c) of this section, a person may make a signed application requesting a hearing held by the public welfare official. Within three working days after receipt of such application for a hearing concerning a decision on an application for assistance and within seven working days after receipt of such application for a hearing concerning a decision on matters other than an application for assistance, the public welfare official shall hold such hearing. Within three days after the hearing, the public welfare official shall render a decision based solely upon all the evidence introduced at the hearing and the application of all pertinent provisions of law, regulation and state policy. Notice of the decision shall be mailed to the aggrieved person within three days of its rendition. "(c) No person shall have the right to a hearing before a public welfare official or a fair hearing by the commissioner due to the levels of assistance to be granted under the general assistance program established pursuant to section 17-3a." General Statutes § 17-292e provides in relevant part: "procedure for fair hearings by commissioner, (a) An aggrieved person, or the conservator of such person on his behalf, authorized by law to request a fair hearing to review a decision of a public welfare official may make a signed application for such hearing to the commissioner and shall state in such application why he claims to be aggrieved. Such application shall be mailed to the commissioner within ten days of such decision. Within fifteen days after receipt of an application to review a decision of a public welfare offi cial, or within four business days if the application concerns a decision on an application for assistance, the commissioner shall hold a fair hearing at a location convenient to the person requesting the hearing." In response to the town's request for financial information, Klever telephoned the town department of social services and stated that she did not want anything to do with the plaintiff and refused to furnish any financial data. General Statutes § 17-2b provides in relevant part: "decision, appeal, extension of time limit foe filing appeal, (a) Not later than sixty days after such hearing, or three business days il' the hearing concerns a denial of or failure to provide emergency housing, the commissioner or his designated hearing officer shall render a final decision based upon all the evidence introduced before him and applying all pertinent provisions of law, regulations and departmental policy, and such final decision shall supersede the decision made without a hearing, provided final definitive administrative action shall be taken by the commissioner or his designee within ninety days after the request of such hearing pursuant to section 17-2a. Notice of such final decision shall be given to the aggrieved person by mailing him a copy thereof within one business day of its rendition. Such decision after hearing shall be final except as provided in subsections (b) and (c) of this section. "(b) The applicant for such hearing, if aggrieved, may appeal therefrom in accordance with section 4-183. Appeals from decisions of said commissioner shall be privileged cases to be heard by the court as soon after the return day as shall be practicable." General Statutes § 4-183 provides in relevant part: "appeal to SUPErioe couet. (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 peti tion for reconsideration is not a prerequisite to the filing of such an appeal. . . . "(i) The appeal shall be conducted by the court without a jury and shall be confined to the record. If alleged irregularities in procedure before the agency are not shown in the record or if facts necessary to establish aggrievement are not shown in the record, proof limited thereto may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs. "(j) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment." The fourteenth amendment to the United States constitution provides in relevant part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (Emphasis added.) The AFDC sponsor income deeming scheme is located at 42 U.S.C. § 615 (a) (1991), which provides in relevant part: "For purposes of determining eligibility for and the amount of benefits under a State plan approved under this part for an individual who is an alien . . . the income and resources of any person who (as a sponsor of such individual's entry into the United States) executed an affidavit of support or similar agreement with respect to such individual, and the income and resources of the sponsor's spouse, shall be deemed to be the unearned income and resources of such individual . . . for a period of three years after the individual's entry into the United States . . . ." General Statutes § 51-199 (b) provides in relevant part: "The following matters shall be taken directly to the supreme court . (2) an appeal in any matter where the superior court declares invalid a state statute or a provision of the state constitution . . . ." The commissioner does not argue that she can prevail should this court agree with the trial court's decision to apply the strict scrutiny test. The commissioner's argument rests entirely on her claim that the rational review test is the appropriate standard. Essential needs include food, shelter, clothing, utilities and medical treatment. Regs., Conn. State Agencies § 17-3a-ll (B). General Statutes § 17-273 (a) provides in relevant part: "Each person who has not estate sufficient for his support, and has no relatives of sufficient ability who are obliged by law to support him, shall be provided for and supported to the extent required under the provisions of this chapter and section 17-3a at the expense of the town in which he resides, except as otherwise provided in this section, or, if he has no residence, of the town in which he becomes in need of aid . . . ." This system is in keeping with Connecticut's history of caring for its poor, without regard to alienage, at the local level. Indeed, the state has provided for its poor through its towns since the early 1600s. Note, "Illegal Aliens, The Social Compact and The Connecticut Constitution," 13 U. Bridgeport L. Rev. 331, 360-61 (1993). Immigration law bars admission of any alien who, at the time of application for entry, is likely to become a public charge. 8 U.S.C. § 1182 (a) (4) (Sup. 1994). For example, an alien who enters without adequate funds to remain self-sufficient or without a promise of employment is considered likely to become a public charge. Foreign Affairs Manual § 40.41, N2, reprinted in 10 C. Gordon & S. Mailman, Immigration Law and Procedure (1993). An alien who otherwise might be likely to become a public charge may, nonetheless, gain entry by including affidavits of support from friends or relatives with the alien's visa application. Id., N6. Thus, affida vits of support are required in the sense that one who is deemed likely to become a public charge must show an alternate source of support to gain entry. Although the United States Supreme Court has not addressed the issue, several state courts have suggested that the affidavit of support creates a moral rather than a legal obligation. See San Diego v. Viloria, 276 Cal. App. 2d 350, 80 Cal. Rptr. 869 (1969); El Souri v. Dept. of Social Services, 429 Mich. 203, 414 N.W.2d 679 (1987); State ex rel. Attorney General v. Binder, 356 Mich. 73, 96 N.W.2d 140 (1959); Dept. of Mental Hygiene of California v. Renel, 10 Misc. 2d 402, 173 N.Y.S.2d 231 (1958); J. Guendelsberger, "Equal Protection and Resident Alien Access to Public Benefits in France and the United States," 67 Tul. L. Rev. 669, 673 n.11 (1993). In addition, Congress has previously rejected proposed legislation that would have made the affidavits legally binding obligations. Minino v. Perales, 79 N.Y.2d 883, 885, 589 N.E.2d 385, 581 N.Y.S.2d 162 (1992). See, e.g., Nyquist v. Mauclet, 432 U.S. 1, 97 S. Ct. 2120, 53 L. Ed. 2d 63 (1977); In re Griffiths, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910 (1973); Graham v. Richardson, supra, 403 U.S. 365. See, e.g., Richmond v. J. A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989); Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967); Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954). See, e.g., Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944); Hirabayashi v. United States, 320 U.S. 81, 63 S. Ct. 1375, 87 L. Ed. 1774 (1943). "It must be remembered that states may not pursue foreign policy objectives; state classifications must relate to a legitimate local interest." 3 R. Rotunda & J. Nowak, Substance and Procedure (2d Ed. 1992) § 18.12, p. 219. This is because the states may not encroach on what the United States Supreme Court has repeatedly stated is exclusively the federal government's power " '[tjo establish [a] uniform Rule of Naturalization,' U.S, Const., Art. I, § 8, cl. 4, its power '[t]o regulate Commerce with foreign Nations,' id., cl. 3, and its broad authority over foreign affairs . . . ." (Citations omitted.) Toll v. Moreno, supra, 458 U.S. 10; see footnote 25. The due process clause of the fifth amendment to the United States constitution provides: "No person shall . . . be deprived of life, liberty, or property, without due process of law . . . ." The equal protection clause of the fourteenth amendment, by its own terms, applies to the states only and not to the actions of the federal government. See footnote 14. The due process clause of the fifth amendment, however, has been held to provide a limitation on the federal government's ability to classify that is identical in theory to that of the equal protection clause of the fourteenth amendment. See, e.g., Buckley v. Valeo, 424 U.S. 1, 93, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2, 95 S. Ct. 1225, 43 L. Ed. 2d 514 (1975); Bolling v. Sharpe, 347 U.S. 497, 499, 74 S. Ct. 693, 98 L. Ed. 884 (1954). The equal protection guarantee of the fifth amendment is derived from the idea that some "discrimination may be so unjustifiable as to be violative of due process." Bolling v. Sharpe, supra, 499; see generally K. Karst, "The Fifth Amendment's Guarantee of Equal Protection," 55 N.C.L. Rev. 541 (1977). Thus, for the same reasons that certain classifications are so invidious or unjustifiable as to deny one the equal protection of the laws, that same denial violates one's right to due process. Historically, Congress has enjoyed almost unfettered discretion to regulate the exclusion and deportation of immigrants. See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 72 S. Ct. 512, 96 L. Ed. 586 (1952); Fong Yue Ting v. United States, 149 U.S. 698, 13 S. Ct. 1016, 37 L. Ed. 905 (1893); Chae Chan Ping v. United States, 130 U.S. 581, 9 S. Ct. 623, 32 L. Ed. 1068 (1889). This broad discretion is rooted in the plenary power doctrine, which posits that "any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government." Harisiades v. Shaughnessy, supra, 588-89. The judicial review of congressional decision making in these areas is extremely narrow because such decisions "are so exclusively entrusted to the political branches of government" that even intrusion by the courts raises serious separation of powers concerns. Id., 589; see also Fiallo v. Bell, 430 U.S. 787, 97 S. Ct. 1473, 52 L. Ed. 2d 50 (1977). Thus, federal legislation regarding aliens is reviewed deferentially for unique reasons of sovereignty and national security, which are not at issue with regard to other federal legislation or, as here, state legislation concerning aliens. For a general discussion of the plenary power doctrine, see note, "Immigration Law—Flores v. Meese: A Lost Opportunity to Reconsider the Plenary Power Doctrine in Immigration Decisions," 14 W. New Eng. L. Rev. 257 (1992). The constitution of the United States, article six, clause 2, provides in relevant part: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." "The supremacy clause mandates that federal law overrides, i.e., preempts, any state regulation where there is an actual conflict between the two sets of legislation such that both cannot stand, for example, if federal law forbids an act which state legislation requires. Moreover, where Congress acts pursuant to a plenary power, it may specifically prohibit parallel state legislation, i.e., occupy or preempt, the field." J. Nowak, R. Rotunda, & J. Young, Constitutional Law (2d Ed. 1983) p. 292. A supremacy clause challenge to state action, therefore, involves much different issues than does a challenge to state action under the equal protection clause. Governmental classifications are strictly scrutinized when they result in inequalities with respect to the deprivation, distribution or accessibility of certain fundamental rights such as the right to vote, litigate, privacy and others. See L. Tribe, American Constitutional Law (2d Ed. 1988) § 16-7. Our conclusion that the state action at issue is neither explicitly nor implicitly authorized by federal law or policy makes it unnecessary for us to reach the issue of whether the federal government could indeed authorize the states to discriminate on the basis of alienage. We do, however, note that the Supreme Court has addressed this issue in Graham v. Richardson, supra, 403 U.S. 382. In that case, the court stated: "Although the Federal Government admittedly has broad constitutional power to determine what aliens shall be admitted to the United States, the period they may remain, and the terms and conditions of their naturalization, Congress does not have the power to authorize the individual States to violate the Equal Protection Clause. Shapiro v. Thompson, [394 U.S. 618, 641, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969)]." Id. It is undisputed that General Statutes § 17-273 (d) was enacted in 1991 in order to reduce the costs associated with maintaining the welfare of Connecticut's needy population and thereby maintain the fiscal integrity of the department of income maintenance in recessionary times. As the state correctly asserts in its brief: "There is ample evidence in the legislative history of this provision that the reason the legislature enacted this and other sections of [Public Acts, Spec. Sess., June, 1991, No. 91-8, § 36 (P.A. 91-8)] was to save money for the state." Indeed, the legislative history of P.A. 91-8 reveals a decidedly cost conservative bent. Regarding the enactment of the act, Senator Kenneth L. Przybysz stated: "It is not something that I and many people look forward to adopting, however, it is necessary in these very difficult times, considered a fiscal crisis here in our State . . . ." 34 S. Proc., Pt. 14, 1991 Spec. Sess., p. 450. In addition Senator Kevin B. Sullivan stated: "|I]n hard times we must make hard decisions but we have to make them with care, compassion, with thought, [and] with understanding. . . . Not easy choices, painful choices, the ones that are necessary for the fiscal health of this State . . . ." Id., pp. 512-13. A number of the commissioner's arguments also imply that consistency with federal immigration and naturalization law is a legitimate goal of the deeming scheme. We need not consider this claimed governmental interest, for two reasons. First, the commissioner has failed to identify and our research has failed to reveal any implied or express federal policy that sponsor income be deemed available to a sponsored alien when determining eligibility for the distribution of all economic benefits. As a result, the state is without authority to act in this exclusively federal domain. See De Canas v. Bica, supra, 424 U.S. 354. Second, even if such authorization existed, the legislative history of P.A. 91-8 forecloses any attempt by the state to argue that its law was enacted to further federal immigration policy. It is clear from the language quoted above that this is not a statute regarding immigration and naturalization, but is a welfare statute concerning who receives essential benefits. Our conclusion that the governmental interest is not compelling obviates the need for us to decide whether the state's scheme is narrowly tailored to achieve its objective. We note, however, that it is difficult to see the relationship between the state's goal and its scheme that presumptively deems to an alien a sponsor's income despite the undisputed fact that the alien neither has actually received nor has actual access to any of the sponsor's assets. Our skepticism is heightened by the fact that the relationship on which the presumption rests, sponsorship, is one that is not legally enforceable by the person to whom the inaccessible income is deemed. See footnote 18. "Only rarely are statutes sustained in the face of strict-scrutiny. As one commentator observed, strict-scrutiny review is 'strict' in theory but usually 'fatal' in fact. Gunther, The Supreme Court, 1971 Term—Forward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972)." Bernal v. Fainter, supra, 476 U.S. 219 n.6; but see Korematsu v. United States, supra, 323 U.S. 214 (discrimination against people of Japanese ancestry upheld on the ground that it was a "military imperative" during World War II).

The petition of the defendants Robert A. Schmitz and Marion B. Schmitz for certification for appeal from the Appellate Court, 34 Conn. App. 905 (AC 11990), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 33 Conn. App. 521 (AC 11572), is denied.

Per Curiam. The certified issues in this criminal appeal concern the circumstances in which the state may properly offer evidence of prior uncharged misconduct to impeach the credibility of a defendant who has testified on his own behalf. The defendant, Robert J. Busque, was convicted, after a jury trial, of four counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), one count of attempted sexual assault in the second degree in violation of General Statutes § 53a-49 (a) and 53a-71 (a) (1) and five related counts of risk of injury to a child in violation of General Statutes § 53-21. The Appellate Court reversed the judgment against the defendant and remanded the case for a new trial. State v. Busque, 31 Conn. App. 120, 623 A.2d 532 (1993). We granted the state's petition for certification to review the Appellate Court's conclusion that evidence of prior uncharged misconduct had been improperly admitted and that its admission was harmful. The opinion of the Appellate Court fully describes the underlying facts of the defendant's alleged sexual abuse of the victim, his teenage daughter. State v. Busque, supra, 31 Conn. App. 122-23. When the defendant was cross-examined by the state after testifying on his own behalf, he denied having engaged in sexual misconduct either with the victim or with his niece. Id., 124. The trial court then permitted the state to impeach the defendant's credibility by calling the niece as a rebuttal witness to testify, in graphic detail, to her sexual abuse by the defendant. Id., 124-25, 130. The Appellate Court concluded that the defendant had properly objected to the admissibility of evidence of this prior, uncharged misconduct with his niece; id., 128; and that the trial court had abused its discretion in permitting the jury to hear this impeachment testimony, which was more prejudicial than probative. Id., 131. The Appellate Court further concluded that, especially in light of the state's closing argument, the defendant had met his burden of showing that the trial court's evidentiary ruling was harmful. Id., 131 and n.6, 132. Accordingly, the Appellate Court remanded the case for a new trial. Id., 132. The state contends, contrary to the conclusions of the Appellate Court, that the defendant's claim of inadmissibility was not preserved at trial, that the evidence was properly admitted, and that the presentation of this evidence to the jury, if improper, was harmless. The Appellate Court expressly considered each of these contentions and correctly determined that, in the circumstances of this case, a new trial is required because of the highly prejudicial nature of the testimony that the trial court permitted the jury to consider. Id., 128-32. Having examined the record on appeal and having studied the briefs and the arguments of the parties, we conclude that the appeal in this case should be dismissed on the ground that certification was improvidently granted. It would serve no useful purpose for us to repeat the detailed discussion contained in the Appellate Court's opinion. State v. Johnson, 227 Conn. 611, 615, 630 A.2d 69 (1993); State v. Milton, 224 Conn. 163, 168, 617 A.2d 460 (1992). The appeal is dismissed. General Statutes § 53a-71 provides in relevant part: "sexual assault IN THE SECOND DEGREE: CLASS C FELONY: NINE MONTHS NOT SUSPENDABLE. (a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age . "(b) Sexual assault in the second degree is a class C felony for which nine months of the sentence imposed may not be suspended or reduced by the court." General Statutes § 53a-49 provides in relevant part: "criminal attempt: SUFFICIENCY OF CONDUCT; RENUNCIATION AS DEFENSE, (a) 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. "(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) of this section unless it is strongly corroborative of the actor's criminal purpose. . . ." General Statutes § 53-21 provides: "injury or risk of injury to, or impairing morals of, children. 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." We granted the state's petition for certification, limited to the following issues: "Did the Appellate Court improperly conclude: "1. In reviewing a nonconstitutional claim, that evidence was more prejudicial than probative, when the claim was unpreserved? "2. In ignoring the trial court's narrow ruling on admissibility, and instead examining the details of testimony admitted after the ruling, in deciding whether the court abused its discretion in admitting such evidence as was relevant to the limited purpose? "3. In finding the limited use of the evidence harmful, when the jury was already well aware of the defendant's misconduct?" State v. Busque, 226 Conn. 910, 628 A.2d 984 (1993). The phraseology of the issues mirrors the state's view of the proceedings at trial and in the Appellate Court. In our plenary consideration of the state's appeal, we are, of course, not bound by the state's characterization of these events.

Santaniello, J. The defendant, Donald L. Chapman, was found guilty by a jury of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l). He was sentenced to a term of imprisonment of fourteen years, the execution of which was suspended after seven years. In his appeal to the Appellate Court, the defendant claimed that the trial court had improperly instructed the jury that it could find him guilty of sexual assault in the first degree if it found that he had compelled the victim to engage in sexual intercourse either by the use of force or the threat of use of force. The defendant argued that the state had neither charged him with threatening to use force nor introduced evidence of the threat of use of force. The Appellate Court concluded that the trial court had "improperly instructed the jury on a statutory alternative for which there was no supporting evidence," reversed the judgment and remanded the case for a new trial. State v. Chapman, 28 Conn. App. 360, 366, 610 A.2d 1328 (1992). We granted the state's petition for certification limited to the following issues: "(1) Did the Appellate Court correctly conclude that the statutory alternative analysis set forth in State v. Williams, 202 Conn. 349, 363-64 (1987), applied to alternative language occurring within the same statutory subdivision] and that the trial court's instruction permitted the jury to consider a separate and distinct theory of criminal liability? (2) Was the Appellate Court correct in its failure to consider whether any error in the trial court's charge was harmless beyond a reasonable doubt?" State v. Chapman, 223 Conn. 923, 614 A.2d 827 (1992). We affirmed the judgment of the Appellate Court and concluded, with two justices dissenting, that "the trial court improperly instructed the jury on a statutory alternative for which the defendant was not charged and for which there was no supporting evidence." State v. Chapman, 227 Conn. 616, 618, 632 A.2d 674 (1993). We also concluded that "the trial court's instruction violated the defendant's due process rights under the Connecticut constitution and that harmless error analysis is not required." Id., 618-19. Subsequently, we granted the state's motion for en banc reconsideration and reargument of the same certified issues. We now conclude that, although the trial court's instruction to the jury was improper, any impropriety in the instruction was harmless. The jury reasonably could have found the following facts. The defendant, the owner of a horse farm in Led-yard, sold a horse to the nineteen year old victim in November, 1989. In order to help pay for the horse's board at the farm, the victim did chores at the farm after work, after school and on weekends. In addition, the defendant helped the victim train her horse, and she "trusted [the defendant] like a father." On March 2, 1990, the defendant invited the victim and Debbie, a fourteen year old girl who also kept a horse at the farm, to spend the night in the horse barn in order to observe a mare that was about to foal. That evening, after the victim and Debbie had worked their horses, the victim's boyfriend arrived to pick her up. She told him, however, that she planned to spend the night at the farm, and asked him to leave because the defendant had told her that he did not want her boyfriend there because "[i]t would look bad." During the evening, while the defendant and the victim were sitting on a couch in the lounge area of the barn, the defendant made suggestive remarks to the victim, asking her if she would like to know "what a real man feels like . . . ." He also took her hand and placed it on his genital area. The victim pulled away and went and sat next to Debbie. At approximately 1 a.m., the victim fell asleep on the lounge floor. Debbie was sleeping on a couch, and the defendant and his young son slept on another couch in the lounge. At approximately 3 a.m., the defendant awakened the victim and asked her to accompany him to the office. All the others present were asleep. Assuming that the mare was about to foal, the victim accompanied the defendant. When they reached the office, the defendant asked the victim to sit on the floor. She complied, half-sitting and half-lying against the wall. The defendant then pushed her on her back and held her down with the weight of his body. Without saying anything, the defendant grabbed the victim's pants and pulled them completely off. Tossing the pants behind him, he said "I want to show you what a real man feels like." The victim kept shaking her head "no." The defendant then slid down on top of the victim and unzipped his pants. The victim tried to squirm, pull away and keep her legs together, but the defendant held her across the chest and used his legs to pry her legs apart. He then penetrated her vagina with his penis. The victim continued to struggle and succeeded in squirming away from the defendant. During the course of the struggle, the defendant repeatedly asked the vie tim, "[IJsn't this what you wanted?" She responded, "no, no." The defendant also told the victim to keep quiet because she was being too loud. After he had penetrated the victim, the defendant got up, tossed the victim's pants to her and left the office. The victim, thereafter, put her pants back on, returned to the lounge and crawled onto the couch with Debbie. The next morning, Debbie, noticing that the victim appeared to be bothered by something, asked her what was wrong. The victim did not respond. Later, without going into detail, the victim told Debbie and Kim, an older girl who had arrived at the barn, what had happened. The victim and Debbie then went to talk to Debbie's parents. The victim told Debbie's parents that the defendant had taken her into his office, placed her in a comer, removed her pants and penetrated her even though she had attempted to cross her legs and struggled with him. Debbie's parents convinced her to call the police. A police officer, Carl Fowler, came to Debbie's parents' house and took a statement from the victim. The statement was later introduced at the defendant's trial as constancy of accusation evidence. That evening, Kim was at the defendant's barn. While she was there, the defendant borrowed her car and drove away. He returned a short time later and stated to Kim: "[I]t is over. . . . I'm going to kill myself." He told Kim that his marriage was unsatisfactory, that he was "horny" and that he needed sex all the time. He also said that he would rather kill himself than go to jail. He then stated that "they" were at the police station and asked Kim to give him a ride in her car. Kim drove the defendant to Debbie's parents' house, where the defendant saw the victim's boyfriend's truck. Debbie's parents' car, however, was not there. The defendant told Kim that the victim must be telling on him, and asked her to take him to the police station. When they arrived at the police station, they saw the victim, Debbie and her parents leaving. The defendant then asked Kim to take him to Debbie's parents' house. The victim, Debbie and her parents found the defendant waiting for them at the house. Debbie's father spoke to the defendant, who was crying, upset and pleading for forgiveness. He stated that he was sorry, that he did not want to go to jail and that "this time" he would go to jail. He asked Debbie's father whether they were going to press charges. When Debbie's father asked him, "[D]o you know what you have done," the defendant became hysterical. The defendant then fled on foot, stating that he was going back to the barn to shoot himself. The police were called again, and Resident State Trooper Ronald Robbins went to the barn where he found the defendant with a gun. After convincing the defendant to put the gun down, Robbins arrested him and warned him of his rights. The defendant gave a written statement to Detective Edward Melvin at that time. In the statement, the defendant acknowledged approaching the victim and inviting her to his office to "finish what she had started." He stated that they then had kissed, and he had removed her pants. He claimed that the victim then had changed her mind, and he had lectured her about being a tease. He said that he had told her that many men would not stop, but that "[h]e was a nice guy." He also told Melvin that the victim was "[o]f legal age," that she "was a troublemaker who made up stories," that she had not been wearing underwear and that he had never exposed his penis to her. Because at trial the defendant claimed that he had amnesia regarding the entire incident, the trial court permitted him to introduce the statement he had given Melvin. In its charge, the trial court paraphrased § 53a-70 (a) (1) to the jury in its entirety, stating that "a person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or by the threat of the use of force against such person which reasonably causes such person to fear physical injury." (Emphasis added.) The defendant took an exception to the court's instructing on a theory of liability for which there was no evidence, thereby properly preserving the issue for appeal. Practice Book § 852; see State v. Tweedy, 219 Conn. 489, 510, 594 A.2d 906 (1991). After the defendant was convicted, he appealed to the Appellate Court, which sustained his appeal, and the state appealed to this court, on our grant of certification. In the Appellate Court, the state conceded that the instruction, as given, was improper because the state did not introduce any evidence of a threat made to the victim by the defendant. For the purposes of this appeal, we accept the state's concession. Accordingly, we must consider whether the Appellate Court improperly failed to apply a harmless error analysis. The substitute information in the present case stated only that the defendant had compelled the victim to engage in sexual intercourse "by the use of force." In its charge to the jury, however, the trial court read the entire statute, stating that the jury could convict the defendant of sexual assault in the first degree if it found that he had compelled the victim to engage in sexual intercourse by the use of force or the threat of the use of force. It is improper for the trial court to read an entire statute to a jury when the pleadings or the evidence support a violation of only a portion of the statute. State v. James, 211 Conn. 555, 583, 560 A.2d 426 (1989); see State v. Franko, 199 Conn. 481, 493, 508 A.2d 22 (1986); State v. Carter, 189 Conn. 631, 645, 458 A.2d 379 (1983). The jury charge was overly expansive because the state had presented no evidence of the threat of the use of force. See State v. Diggs, 219 Conn. 295, 298-302, 592 A.2d 949 (1991). Having concluded that the trial court instructed the jury improperly, we must determine whether: (1) the error is constitutional or nonconstitutional in nature; and (2) whether it was harmful. See State v. Lewis, 220 Conn. 602, 600 A.2d 1330 (1991). The defendant contends that, under our holding in State v. Williams, supra, 202 Conn. 363-65, an instruction that includes a charge to the jury on a theory of liability that is not supported by the evidence is a due process violation that cannot be considered harmless. We disagree. The defendant first argues that the trial court's instruction violated his constitutional right to be informed of the nature and cause of the charges against him. We are not persuaded by this argument. "The sixth amendment to the United States constitution and article first, § 8, of the Connecticut consti tution guarantee a criminal defendant the right to be informed of the nature of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and . to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense . State v. Scognamiglio, 202 Conn. 18, 22, 519 A.2d 607 (1987). Therefore, for the defendant to establish an infringement of these constitutional rights, he must demonstrate that the court's charge caused him unfair surprise or prejudiced the preparation of his defense. State v. Franko, [supra, 199 Conn. 490]." (Internal quotation marks omitted.) State v. Ruscoe, 212 Conn. 223, 253, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990). The substitute information put the defendant on notice that he was charged with compelled sexual intercourse. His theory of defense, advanced through his out-of-court written statement introduced at trial, was that the victim initially had consented to engage in sexual intercourse, but that she had changed her mind and that he had halted his advances. The defendant contended that he could not have compelled the victim to engage in sexual intercourse, because sexual intercourse had never occurred. There is not the slightest indication in this record that the defendant's defense would have been different if the instruction had not included the threat of use of force. We conclude that the trial court's instruction did not prejudice the defendant. Because the defendant's theory of defense is unrelated to the method of compulsion employed to compel intercourse, the defendant has not established a violation of his constitutional right to be informed of the charges against him. Any impropriety in the court's charge, therefore, does not require reversal on this basis. State v. Scognamiglio, supra, 202 Conn. 22. The defendant also asserts a due process violation under both the United States constitution and article first, § 8, of the Connecticut constitution based on State v. Williams, supra, 202 Conn. 349. We disagree. Our decision in State v. Williams, supra, 363, was founded on our interpretation of federal cases holding that including an instruction on a factually unsupported theory of liability constituted a federal due process violation. See State v. Marino, 190 Conn. 639, 651, 462 A.2d 1021 (1983), citing Leary v. United States, 395 U.S. 6, 31-32, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969), and Yates v. United States, 354 U.S. 298, 312, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957), overruled on other grounds, Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). Since Williams was decided, however, the United States Supreme Court has held that a factual insufficiency regarding one statutory basis, which is accompanied by a general verdict of guilty that also covers another, factually supported basis, is not a federal due process violation. Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991). The defendant's claim in this case is analagous to the claim in Griffin. "Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law—whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence . . . ." (Citation omitted; emphasis in original.) Id., 59. " 'It is one thing to negate a verdict that, while supported by evidence, may have been based on an erroneous view of the law; it is another to do so merely on the chance—remote, it seems to us—that the jury convicted on a ground that was not supported by adequate evidence when there existed alternative grounds for which the evidence was sufficient.' " Id., 59-60. The instruction in the present case charged the jury on compelled sexual intercourse by the threat of the use of force, a legally adequate theory of liability for which there was no evidence. The jurors, however, were in a position to be able to evaluate the testimony presented and to assess whether the charged theory was supported by the evidence. In reaching its decision in Griffin, the United States Supreme Court distinguished it from Leary v. United States, supra, 395 U.S. 6, stating that Leary was a case in which the jury verdict may have rested on an unconstitutional ground. Griffin v. United States, supra, 502 U.S. 55. The Appellate Court in this case, however, relied upon Leary, in part, in determining that the impropriety in instructing the jury concerning the unsubstantiated theory of liability was of constitutional magnitude. State v. Chapman, supra, 28 Conn. App. 365. In Griffin, the United States Supreme Court also distinguished Yates v. United States, supra, 354 U.S. 298, because Yates was a case in which one of the possible grounds for conviction was legally insufficient as opposed to being supported by inadequate evidence. Griffin v. United States, supra, 55. The court specifically stated that Yates should not be extended to cases in which one of the grounds for conviction was inadequately supported by the evidence. Id. At oral argument before this court, the defendant conceded that, in light of the holding in United States v. Griffin, supra, 502 U.S. 55-56, the jury instruction at issue in this case did not constitute a federal constitutional violation. We agree with that concession. At oral argument in this court, the defendant also conceded that his claim of error under the state constitution relies on the analysis presented in State v. Marino, supra, 190 Conn. 639. The defendant's brief supports that concession. Although he did refer to article first, § 8, in his brief, his entire constitutional analysis thereunder was based on the Williams and Marino line of cases. There is no reference to the language or history of article first, § 8, no reference to prior constitutional decisions of this or other states, and no reference to policy considerations. See State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992). As noted above, the analysis in State v. Marino, supra, 649, and State v. Williams, supra, 202 Conn. 349, is a federal constitutional analysis that has been rendered inapplicable by United States v. Griffin, supra, 502 U.S. 55-56, to cases involving factual insufficiency. The Appellate Court decision was based upon the same flawed federal constitutional analysis. The certified questions do not invoke the state constitution. Under these circum stances, therefore, we conclude that a state constitutional basis for the instructional impropriety in this case has not been properly and adequately presented to us. We next consider the defendant's argument that, under State v. Williams, supra, 202 Conn. 349, the instructional error in this case requires a per se reversal, without consideration of its harmfulness. We are not persuaded by this argument. Every case that we have found in which a similar instructional error was treated as a ground for per se reversal error traces back, ultimately, to Leary and Yates. See, e.g., State v. Hufford, 205 Conn. 386, 399, 533 A.2d 866 (1987); State v. Williams, supra, 202 Conn. 363; State v. Arnold, 201 Conn. 276, 281, 514 A.2d 330 (1986); State v. Silveira, 198 Conn. 454, 459, 503 A.2d 599 (1986); State v. Thompson, 197 Conn. 67, 74, 495 A.2d 1054 (1985); State v. Asherman, 193 Conn. 695, 730, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Reid, 193 Conn. 646, 480 A.2d 463 (1984); State v. Marino, supra, 190 Conn. 651. Leary and Yates, however, have now clearly been shown by Griffin v. United States, supra, 502 U.S. 55-56, (1) not to be based on the federal constitution, and (2) to have had no initial constitutional basis. Moreover, in those cases that do not derive from Leary and Yates, we have consistently held that submission of an instruction for which there was no basis in the evidence is subject to harmless error analysis. See, e.g., State v. Torrence, 196 Conn. 430, 438, 493 A.2d 865 (1985) (harmless error analysis applied to submission of part of insanity defense for which there was no evidence, and error held harmless because that was not the issue actually litigated at trial); State v. Townsend, 206 Conn. 621, 627, 539 A.2d 114 (1988) (harmless error analysis applied to overinclusive instruction on larceny statute, and error held harmless because no prejudice to defendant); State v. Gonzales, 222 Conn. 718, 724-26, 609 A.2d 1003 (1992) (instruction on inapplicable part of attempt statute held harmless). Indeed, in State v. Cerilli, 222 Conn. 556, 582-85, 610 A.2d 1130 (1992), the trial court improperly instructed the jury that the state did not have to prove an intentional failure to appear, which was an element of the crime charged, in order to convict under General Statutes § 53a-172 (wilful failure to appear). Having concluded that the court's instruction either eliminated the wilfulness element or shifted the burden of proof to the defendant, we nonetheless held the error harmless beyond a reasonable doubt because, considering the evidence in the case, there was no reasonable possibility that the jury was misled. Id., 585. If that kind of instructional error is subject to harmless error analysis, we see no sound reason why the kind of error committed in this case requires per se reversal. Furthermore, we have held that, where the state charges that a defendant has committed a crime in more than one way, and those ways are charged in the conjunctive, as they must be, and the trial court instructs, as it must, that the state need only prove one of its allegations, and not all, the verdict must be upheld so long as there is sufficient evidence under any of the allegations. See, e.g., Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970); State v. Eason, 192 Conn. 37, 42, 470 A.2d 688 (1984); State v. Torres, 24 Conn. App. 316, 588 A.2d 232 (1991); State v. Lode, 36 Conn. Sup. 603, 609, 421 A.2d 880 (1980). Yet in those cases, presumably there is no way to know definitively whether the jury found the defendant guilty under the supported or unsupported allegation. We look only to see whether there was evidence to support any one of the allegations. In effect, we assume that the jury found the defendant guilty under the supported allegation, rather than the unsupported allegation. Analytically, applying the per se reversal principle to this case would be inconsistent with those cases, because to do so would be to assume that the jury found the defendant guilty under the unsupported part of the instruction. We fail to see why we should engage in that assumption. The sounder rule is that, having found the instructional error, we then go on to determine, as we ordinarily do, whether the error was harmless. We therefore consider, on a nonconstitutional basis, the harmfulness of the impropriety in the trial court's instruction. "When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court's error. State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). The defendant must show that it is more probable than not that the erroneous action of the court affected the result. Id.; State v. McClain, 171 Conn. 293, 300, 370 A.2d 929 (1976). State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988). State v. Vilalastra, [207 Conn. 35, 47, 540 A.2d 42 (1988)]." (Internal quotation marks omitted.) State v. Campbell, 225 Conn. 650, 657, 626 A.2d 287 (1993). Under the circumstances of this case, we cannot conclude that it is more probable than not that the court's instructional impropriety affected the result. "[T]he appellate harmless error doctrine is rooted in [the] fundamental purpose of our criminal justice system—to convict the guilty and acquit the innocent. The harmless error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence, United States v. Nobles, 422 U.S. 225, 230 [95 S. Ct. 2160, 45 L. Ed. 2d 141] (1975), and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error. Rose v. Clark, 478 U.S. 570, 577, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986), quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986)." (Internal quotation marks omitted.) Bunkley v. Commissioner of Correction, 222 Conn. 444, 460, 610 A.2d 598 (1992). " 'For an erroneous portion of a charge to be reversible error, this court must consider the whole charge and it must be determined, in appeals not involving a constitutional question, if it is reasonably probable that the jury were misled . . . and, in appeals involving a constitutional question, if it is reasonably possible that the jury were misled.' " (Citations omitted.) State v. Ruiz, 171 Conn. 264, 273, 368 A.2d 222 (1976), quoting State v. Rose, 169 Conn. 683, 687-88, 363 A.2d 1077 (1975). First, although the court in its instructions improperly included the reference to the threat of use of force, the court specifically defined only the actual use of force. In its charge to the jury, the trial court stated: "Now, a person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or by the threat of the use of force against such person which reasonably causes such person to fear physical injury. In order to commit the crime of sexual assault in the first degree the state must prove beyond a reasonable doubt that, one, sexual intercourse had taken place. And two, the defendant compelled the victim to engage in sexual intercourse either by the use of force or by threat of the use of force which caused the victim to reasonably fear physical injury to herself. . If you find that the required sexual intercourse had been proven beyond a reasonable doubt, you must next determine whether the defendant used or threatened the use of force. Use of force means either the use of a dangerous instrument. There is no claim of that here. Or the use of actual physical force or violence or superior physical strength against the victim. Thus, if you find that the [state] has proved beyond a reasonable doubt each of the elements of this offense you will find the defendant guilty. If on the other hand, you conclude that the state has failed to prove beyond a reasonable doubt one or more of these elements you must find the defendant not guilty of the crime charged." Moreover, the court gave the jury the substitute information, which referred only to the use of force, and instructed the jury to be guided by this information in its deliberations. The court stated: "[Y]ou are guided by that information. In other words, the state is alleging the facts as you find them in that substitute information as a basis for their claim that the defendant Donald Chapman did commit the crime of sexual assault in the first degree." The substitute information stated, in part, that "the defendant attempted to, and did compel, the victim to engage in sexual intercourse by the use of force against said victim, to wit: the said Donald L. Chapman restrained the victim, attempted to, and did forcibly penetrate her vagina with his penis . . . ." The substitute information did not mention any threats. In addition, the jury was instructed to "consider only such evidence as was admitted." In addition, because at trial the defendant claimed to have had amnesia, he based his defense on the statement that he had given to the police in which he claimed that intercourse never took place. There is no indica tion that the defendant would have changed his defense had the information also contained the "threat of the use of force" language. From this point of view any impropriety in the instruction was harmless. Furthermore, under the facts of this case, no reasonable juror could have convicted the defendant of sexual assault in the first degree solely by the use of threats. The victim testified, and the constancy of accusation evidence was that the defendant had used actual force to overcome her resistance. The state also introduced evidence of numerous inculpatory statements that the defendant had made to other persons and of the defendant's inculpatory course of conduct after the incident. The defendant, on the other hand, claimed only that sexual intercourse had never occurred. He stated that initially the victim had consented to engage in sexual intercourse, that they had kissed, and that when the victim had changed her mind about having intercourse, he had stopped. To find the defendant guilty of sexual assault by the threat of use of force, the jury would have had to fabricate evidence of explicit threats when none had been presented, and to ignore the evidence that had been presented. Finally, under the facts of this case, if the jury did rely on an inference of a threat of force in order to convict the defendant, that inference could only have been drawn from the evidence of the defendant's actual use of force. In this case, in which the evidence was that the defendant compelled the victim to submit to sexual intercourse despite the victim's continued resistance, the jury could have inferred that the use of force carried with it the implied threat that additional force would be used unless the victim submitted to the defendant. Thus, any improper enlargement of the offense by virtue of the instruction was harmless because the jury's reliance on that enlargement could only have arisen from an antecedent finding of the actual use of force, which was the conduct with which the defendant had been charged and with regard to which the jury-had been properly instructed. The judgment of the Appellate Court is reversed, and the case is remanded to that court with direction to affirm the judgment of the trial court. In this opinion Peters, C. J., Callahan, Borden and Palmer, Js., concurred. General Statutes § 53a-70 (a) provides in relevant part: "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 . . . ." The defendant raised several other issues in the Appellate Court that are not before this court: (1) that he suffered from amnesia and was therefore incompetent to stand trial; (2) that the trial court improperly failed to admit statements that the victim had made to the defendant for the purpose of showing the effect of those statements on his state of mind; and (3) that the trial court improperly referred to his "misstatements" in its jury charge on consciousness of guilt. State v. Chapman, 28 Conn. App. 360, 361-62, 610 A.2d 1328 (1992). In view of our conclusion, on the second certified issue, that the instructional error was harmless, we need not consider the first certified issue. See Property Group, Inc. v. Planning & Zoning Commission, 226 Conn. 684, 686, 628 A.2d 1277 (1993). In the Appellate Court the state conceded that it had introduced no evidence of a threat, and we take this concession, as did the Appellate Court, as a concession that it did not introduce any evidence of a threat, express or implied. The state did, however, argue in the Appellate Court, as it does here, that the error was harmless. In this court, the state has modified its position, and concedes that it had introduced no "specific" evidence of a threat, but maintains that evidence of an implied threat may be inferred from the use of force. Because we are reviewing the opinion of the Appellate Court, we will not permit the state to modify its concession. We therefore consider the case on the basis that, for purposes of determining whether the charge was erroneous, there was no evidence of a threat. This does not necessarily require, however, that we also assume, for purposes of determining the harmlessness of the error, that under the facts of this case the actual use of force could not also imply a threat of force. See pp. 547-48. Wo have previously indicated that the United States Supreme Court had applied the rule regarding instructions on an inadequate theory of liability to claims of evidentiary insufficiency. State v. Reid, 193 Conn. 646, 667 n.22, 480 A.2d 463 (1984), citing Cramer v. United States, 325 U.S. 1, 36 n.45, 65 S. Ct. 918, 89 L. Ed. 2d 1441 (1945). The United States Supreme Court addressed this interpretation of Cramer in Griffin v. United States, supra, 502 U.S. 55 n.1. The court stated that Cramer, like Leary and Yates, was not a case involving the sufficiency of the evidence, and that the court in Cramer addressed whether the facts adduced at trial were sufficient in law to constitute the alleged violation. Id. The court also noted that the Second Circuit Court of Appeals had distinguished Cramer from sufficiency of the evidence cases. See Cramer v. United States, 137 F.2d 888, 893-94 (2d Cir. 1943). Consequently, reliance on Cramer v. United States, supra, 325 U.S. 1, for the proposition that evidentiary insufficiency is an appropriate federal ground upon which to invalidate a general verdict has been precluded by the United States Supreme Court's interpretation of that case. Moreover, even if we were to consider the instructional error to be of constitutional magnitude, and thus apply the constitutional standard of harmfulness, we would reach the same conclusion. Based on all of the considerations outlined in the text of this opinion, pp. 545-48, we are convinced beyond a reasonable doubt that the error was harmless.

Per Curiam. The dispositive issue in this land use appeal is whether a town regulation can lawfully limit the discretion that General Statutes § 8-26 confers on a town planning and zoning commission. The defendants Theodore G. Dean and Beverly H. Dean (defendants) sought approval for a proposed subdivision in the town of Canterbury. The named defendant, the planning and zoning commission of the town of Canterbury (commission), granted their application despite its having been disapproved by the town inland wetlands commission. The plaintiffs, Barbara Thoma and Theodore W. Dean, appealed to the trial court, which sustained their appeal on the ground that § 4.12.3 of the Canterbury zoning regulations deprived the commission of the authority to grant a proposed subdivision application that had been disapproved by the inland wetlands agency. The Appellate Court granted the defendants' request for certification to appeal and reversed the judgment of the trial court. Thoma v. Planning & Zoning Commission, 31 Conn. App. 643, 626 A.2d 809 (1993). The Appellate Court held that the regulation was a delegation of authority to the inland wetlands agency that was impermissible in light of the conflicting provision of § 8-26, which requires the commission to give only " 'due consideration' to a report prepared by the inland wetlands agency . . . ." Id., 648; see Arway v. Bloom, 29 Conn. App. 469, 479-80, 615 A.2d 1075 (1992), appeal dismissed, 227 Conn. 799, 801-802, 633 A.2d 281 (1993). We granted the plaintiffs' petition to appeal this question of regulatory authority. After examining the record on appeal, and after considering the briefs and arguments of the parties, we conclude that the judgment of the Appellate Court must be affirmed. The issue on which we granted certification was properly resolved in the thoughtful and comprehensive opinion of the Appellate Court. It would serve no useful purpose for us to repeat the discussion therein contained. Cf. Whisper Wind Development Corp. v. Planning & Zoning Commission, 229 Conn. 176, 640 A.2d 100 (1994); Board of Education v. State Board of Education, 228 Conn. 433, 436, 636 A.2d 378 (1994); Stankiewicz v. Zoning Board of Appeals, 211 Conn. 76, 78, 556 A.2d 1024 (1989). The judgment of the Appellate Court is affirmed. General Statutes § 8-26 provides in relevant part: "approval of subdivision AND RESUBDIVISION PLANS. WAIVER OF CERTAIN REGULATION REQUIREMENTS. APPLICATIONS INVOLVING INLAND WETLANDS AND WATERCOURSES. All plans for subdivisions and resubdivisions . . . shall be submitted to the commission with an application in the form to be prescribed by it. The commission shall have the authority to determine whether the existing division of any land constitutes a subdivision or resubdivision under the provisions of this chapter, provided nothing in this section shall be deemed to authorize the commission to approve any such subdivision or resubdivision which conflicts with applicable zoning regulations. . If an application involves land regulated as an inland wetland or watercourse under the provisions of chapter 440, the applicant shall submit an application to the agency responsible for administration of the inland wetlands regulations no later than the day the application is filed for the subdivision or resubdivision. The commission shall not render a decision until the inland wetlands agency has submitted a report with its final decision to such commission. In making its decision the commission shall give due consideration to the report of the inland wetlands agency." We granted the plaintiffs' petition for certification to appeal limited to the following issue: "Did the Appellate Court properly conclude that: (a) Canterbury Zoning Regulation § 4.12.3 requires, as a condition precedent to subdivision approval, inland wetlands approval; and (b) the zoning regulation conflicts with General Statutes § 8-26?" Thoma v. Planning & Zoning Commission, 227 Conn. 910, 632 A.2d 700 (1993).