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The plaintiff's petition for certification for appeal from the Court of Common Pleas in Fairfield County is denied.

Bogdanski, J. These two appeals concern an amendment of the zoning regulations of the town of Hamden by the defendant planning and zoning commission. The plaintiffs herein are the same parties who appealed from the decision of the defendant commission approving and adopting street lines for a new town highway in Hamden called the east-west connector. Schwartz v. Hamden, 168 Conn. 8, 357 A.2d 488. As in those cases, the trial court dismissed the appeals. From the judgments rendered and after the granting of certification, the plaintiffs filed a joint appeal to this court, assigning error in the conclusions of the trial court. After proper legal notice, the defendant commission held a public hearing on March 17, 1970, concerning the adoption of certain amendments to the zoning regulations of the town of Hamden. Those amendments purported to create three new shopping center districts and were subsequently adopted by the unanimous vote of the commission members. At the time of their adoption the new districts, designated regional, community, and neighborhood shopping center districts, did not affect any particular area or property within the town. Before those new districts could be applied to any land within the town, an applicant would have to petition the commission for a change of zone. The trial court concluded that the newly created shopping center districts were "floating zones." "A floating zone is a special detailed use district of undetermined location in which the proposed kind, size and form of structures must be preapproved. It is legislatively predeemed compatible with the area in which it eventually locates if specified standards are met and the particular application is not unreasonable. Chatham Corporation v. Beltram, 243 Md. 138, 149, 220 A.2d 589; 2 Anderson, American Law of Zoning § 12.11. It differs from the traditional 'Euclidean' zone in that it has no defined boundaries and is said to 'float' over the entire area where it may eventually be established. Bigenho v. County Council, 248 Md. 386, 391, 237 A.2d 53." Sheridan v. Planning Board, 159 Conn. 1, 16, 266 A.2d 396; The legality of this type of zoning, when properly applied, has been recognized by this court. Lurie v. Planning & Zoning Commission, 160 Conn. 295, 278 A.2d 799 (Westport design development district); Sheridan v. Planning Board, supra (Stamford industrial park district); Hawkes v. Town Plan & Zoning Commission, 156 Conn. 207, 240 A.2d 914 (Farmington restricted apartment zone); Dooley v. Town Plan & Zoning Commission, 154 Conn. 470, 226 A.2d 509 (Fairfield residence district); Miss Porter's School, Inc. v. Town Plan & Zoning Commission, 151 Conn. 425, 198 A.2d 707 (Farmington restricted apartment zone); Luery v. Zoning Board, 150 Conn. 136, 187 A.2d 247 (Stamford designed commercial district) ; DeMeo v. Zoning Commission, 148 Conn. 68, 167 A.2d 454 (Bridgeport garden apartment zone). The trial court sustained the commission's action on all issues raised by the plaintiffs. The ruling that was dispositive of the appeals, however, concerned the issue of aggrievement. The trial court concluded that the plaintiffs were not aggrieved by the action of the commission because their appeals were filed before any particular property or area in the town had been designated as a shopping center district. That decision was based on Sheridan v. Planning Board, supra, where we held (p. 12) that: "as a matter of law, there can be no aggrievement when the zoning regulations of a municipality are amended in such a way that no particular area or property is affected." The plaintiffs concede that their appeals were filed before the new shopping center districts had affected any particular area or property. They argue, however, that the trial court's interpretation of Sheridan means that judicial review is obtainable only after the floating zone has settled; that such review is limited to questioning the application of the zone to particular property; and that there can be no review of the validity of the amendments which created the zone. The plaintiffs con tend that this denies them effective judicial review of the commission's action in amending the zoning regulations and, in effect, deprives them of due process of law. The due process clause of the fourteenth amendment requires an opportunity for a hearing at a meaningful time and in a meaningful manner appropriate to the nature of the case. Boddie v. Connecticut, 401 U.S. 371, 378, 91 S. Ct. 780, 28 L. Ed. 2d 113. That opportunity was afforded in this case when the commission held its public hearing-on March 17, 1970, after proper legal notice. The plaintiffs attended that hearing, argued against the adoption of the amendments, and raised numerous procedural objections. Moreover, the root requirement of due process is "that an individual be given an opportunity for a hearing before he is deprived of any significant property interest." Boddie v. Connecticut, supra, 379. In this case, the plaintiffs have not been deprived of any property interest. The statutes adequately protect the plaintiffs in the event that their property interests are later threatened by the application of the floating zone to land within the town. Before the floating zone can "descend," an application must be made for a change of zone and a public hearing-must be held. G-eneral Statutes § 8-3. If the zone change is granted and the plaintiffs are aggrieved, they may appeal the granting of the zone change to the Court of Common Pleas. G-eneral Statutes § 8-8, 8-9. There is no constitutional right to judicial review of the action of a planning or zoning-agency. Such review exists only under statutory authority. Schwarts v. Hamden, 168 Conn. 8, 10, 357 A.2d 488; Tazza v. Planning & Zoning Commission, 164 Conn. 187, 191, 319 A.2d 393; East Side Civic Assn. v. Planning & Zoning Commission, 161 Conn. 558, 560, 290 A.2d 348; Sheridan v. Planning Board, 159 Conn. 1, 10, 266 A.2d 396; Long v. Zoning Commission, 133 Conn. 248, 252, 50 A.2d 172. Under § 8-8 of the General Statutes, aggrievement is a prerequisite to a right of appeal. "Except in cases involving the sale of alcoholic beverages, aggrievement requires a showing that the plaintiffs have a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest such as is the concern of the community as a whole, and that the plaintiffs were specially and injuriously affected in their property or other legal rights. Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 507, 242 A.2d 705; I. R. Stich Associates, Inc. v. Town Council, 155 Conn. 1, 3, 229 A.2d 545; Hickey v. New London, 153 Conn. 35, 37, 213 A.2d 308; Tyler v. Board of Zoning Appeals, 145 Conn. 655, 662, 145 A.2d 832; see 'The Connecticut Law of Zoning (Part B),' 41 Conn. B.J. 453, 485-88." Sheridan v. Planning Board, supra, 13. Since the amendment in question did not affect the plaintiffs in their property or other legal rights, they were not specially and legally injured by its adoption. Sheridan v. Planning Board, supra. In such circumstances there can be no aggrievement. The plaintiffs' contention that the above ruling precludes judicial review when a zoning agency adopts a floating zone is incorrect. Since the creation of the floating zone is an indispensable component of the zoning authority's ability to apply it eventually to land by means of a change of zone, irregularities in the amendment or adop tion of zoning regulations which create a floating-zone may he raised by an aggrieved person in an appeal from the change of zone if and when such change occurs. See Sheridan v. Planning Board, supra, 14-19. The plaintiffs' argument that they have standing to appeal as resident taxpayers who are aggrieved because the new shopping- center districts may involve the sale of liquor is without merit. There is no sale of liquor involved in these appeals. There is no error. In this opinion the other judges concurred.

Arthur H. Healey, J. The plaintiff in this case, Lundy Electronics and Systems, Inc. (Lundy), is a foreign corporation. At the time that this action was instituted, it was also the owner of certain personal property which was placed in the Hartford National Bank in the city of Hartford. This property was exempt from local personal property taxes pursuant to General Statutes § 12-121a. On January 9, 1975, the tax assessor for the city of Hartford advised Lundy by letter that a penalty assessment was being levied against it for failing to file a listing of exempt personal property as required by General Statutes ^ 12-121b. Subsequent to this letter, on January 24, 1975, Lundy did file the proper forms. The tax assessor, however, refused to cancel the penalty and so notified Lundy on February 11,1975. Lundy appealed this decision on the penalty to the state tax commissioner (tax commissioner), which appeal was denied. Thereafter, Lundy appealed to the Superior Court. On November 18, 1980, the court, Corrigan, J., rendered a decision sustaining Lundy's appeal. This appeal followed. Lundy claims that General Statutes § 12-121b requires the assessors in each municipality to provide property owners with effective notice of the information that they are required to file prior to assessing any penalties. Failure to provide adequate notice in sueh circumstances would, according to Lundy, violate the constitutional principles of due process and equal protection. Furthermore, it claims that the tax assessor for the city of Hart ford failed to comply with the provisions of General Statutes § 12-43. That statute, entitled "Property of nonresidents," provides, in pertinent part, that "[a] 11 owners of real estate, or of tangible personal property located in any town more than seven months during the year, who are nonresidents of such town, shall file lists of such real estate and personal property with the assessors of the town in which the same is located under the same provisions as apply to residents, and such personal property shall not be liable to taxation in any other town in this state. The list of each nonresident taxpayer shall contain his post-office and street address. The assessors shall mail to each nonresident, or to his attorney or agent having custody of his taxable property, at least fifteen days before the expiration of the time for filing lists, blank forms for filing lists of such property." (Emphasis added.) Although not cited in Lundy's brief, General Statutes § 12-121b also has a provision requiring lists to be "on a form approved by the state tax commissioner and furnished by said assessors." By admission, the local tax assessor provided no list to Lundy within the time provided. This failure, according to Lundy, "is a fatal defect as to the attempt of the municipality to impose a penalty assessment." Therefore, it submits that the Superior Court's judgment should be affirmed. The tax commissioner has raised three claims. First, he asserts that he had no jurisdiction to review Lundy's claim regarding the propriety of the penalty pursuant to General Statutes § 12-12M. That statute provides as follows: "If, in the process of verification-for purposes of assessment under section 12-121c, the local assessor finds an owner's report to be unacceptable for any reason, he shall notify said owner, in writing, within sixty days following the assessment date, including in such notification, details as to why said report is not acceptable. The taxpayer may request a hearing before such assessor not later than thirty days following the receipt of such notice, and said taxpayer shall have the right to appeal to the state tax commissioner for a hearing not later than six months following the assessment date. The decision of said commissioner based on such hearing shall be binding, subject to the right of said taxpayer to appeal to the court of common pleas within sixty days of receipt of notice of said decision." In regard to the merits of Lundy's claim, the tax commissioner contends that Lundy had sufficient notice to satisfy constitutional standards citing, inter alia, Texaco, Inc. v. Short, 454 U.S. 516, 102 S. Ct. 781, 70 L. Ed. 2d 738 (1982). The tax commissioner also claims that the local assessor was relieved of the burden of providing the necessary filing forms because Lundy had not previously submitted its name and address to the assessor's office. We agree with the tax commissioner's claim that he was without jurisdiction under the statute to grant the relief sought by Lundy and, therefore, we hold that the Superior Court erred in not dismissing Lundy's appeal. Because of this holding, we do not reach the merits of this appeal. The tax commissioner " 'must act strictly within [his] statutory authority, within constitutional limitations, and in a lawful manner.' " Fusco-Amatruda Co. v. Tax Commissioner, 168 Conn. 597, 604, 362 A.2d 847 (1975), quoting Southern New England Telephone Co. v. Public Utilities Commission, 144 Conn. 516, 523, 134 A.2d 351 (1957); see also Page v. Welfare Commissioner, 170 Conn. 258, 262, 365 A.2d 1118 (1976); Waterbury v. Commission on Human Rights & Opportunities, 160 Conn. 226, 230, 278 A.2d 771 (1971); cf. Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 93-94, 291 A.2d 721 (1971). In like manner, " ' [n] o administrative or regulatory body can modify, abridge or otherwise change the statutory provisions under which it acquires authority unless the statute specifically grants it that power.' " Fusco-Amatruda Co. v. Tax Commissioner, supra, quoting State ex rel. Huntington v. McNulty, 151 Conn. 447, 449, 199 A.2d 5 (1964); see also Waterbury v. Commission on Human Rights & Opportunities, supra, and cases cited therein. In the present case, the tax commissioner's grant of authority is to be found in General Statutes § 12-12M as set out above. Our task is to determine whether, pursuant to that grant of authority, the tax commissioner is authorized to review the levying of a penalty assessment on a taxpayer who is late in filing the forms required by General Statutes § 12-121b. "As is true in every case involving the construction of a statute, our starting point must be the language employed by the legislature." Verdon v. Transamerica Ins. Co., 187 Conn. 363, 366, 446 A.2d 3 (1982). General Statutes § 12-121d does not explicitly delineate the scope of any hearing before the commissioner. Rather, it merely states the "taxpayer may request a hearing before such assessor . . . and said taxpayer shall have the right to appeal to the state tax commissioner for a hearing." We must therefore look to the statute as a whole in order to determine the tax commissioner's statutory grant of authority. Verrastro v. Sivertsen, 188 Conn. 213, 222, 448 A.2d 1344 (1982); see also Connecticut Theater Foundation, Inc. v. Brown, 179 Conn. 672, 676-77, 427 A.2d 863 (1980); LaProvidenza v. State Employees' Retirement Commission, 178 Conn. 23, 29, 420 A.2d 905 (1979). General Statutes § 12-121d provides, in part, that "[i]f, in the process of verification for purposes of assessment under § 12-121c, the local assessor finds an owner's report to be unacceptable for any reason, he shall notify said owner . as to why said report is not acceptable." Lundy fixes upon the words "unacceptable for any reason" as providing the assessor with the authority to consider claims based upon the lack of statutory notice. The problem with this position is that it would require us to interpret these words in isolation from the rest of the statute. We have noted that words which are seemingly clear and unambiguous may be modified by the context in which they are found. Doe v. Institute of Living, 175 Conn. 49, 57, 392 A.2d 491 (1978); Mitchell v. King, 169 Conn. 140, 144, 363 A.2d 68 (1975). In the present case, a local assessor's authority to consider a problem raised by a taxpayer is limited by General Statutes § 12-121d to those claims that arise "in the process of verification for purposes of assessment under [General Statutes] section 12-121c." The legislative history of the statute provides no assistance in determining the parameters of what is included in the "process of verification." We must interpret these terms, therefore, according to their "commonly approved usage." General Statutes § 1-la; Doe v. Institute of Living, supra. The word "verification" has been defined as "the authentication of truth or accuracy by such means as facts, statements, citations, measurements, or attendant circumstances." Webster's Third New International Dictionary. The assessment procedure under General Statutes § 12'-121e requires an assessor to "submit to the state tax commissioner . a list of the owners, together with an itemized statement of each such owner's acquisitions of personal property, showing the fair market value thereof." The verification process, therefore, requires an assessor to "authenticate" the list of owners, the extent of their property holdings, and the value of those holdings. It follows from this that under § 12-121d, a report can be "unacceptable for any reason" only if arising from these categories. Therefore, we cannot accept Lundy's claimed interpretation of the words "unacceptable for any reason." In so concluding, we note that the date on which forms are provided to a taxpayer, or the date on which the taxpayer files those forms is outside of the verification process. To hold otherwise would render insignificant that section of the statute providing, "[i]f, in the process of verification for purposes of assessment under section 12-121c." It is well recognized that " 'a statute should be construed so that no word, phrase or clause will be rendered meaningless.'" Verrastro v. Sivertsen, supra, 221, quoting C. White & Son, Inc. v. Rocky Hill, 181 Conn. 114, 122, 434 A.2d 949 (1980) (Citations omitted); see Doe v. Institute of Living, supra, 58, and cases cited therein. Rather, " 'there is a presumption of purpose behind every sentence, clause or phrase.' " State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978), quoting Doe v. Institute of Living, supra. See also Winchester v. Connecticut State Board of Labor Relations, 175 Conn. 349, 356, 402 A.2d 332 (1978); State ex rel. Kennedy v. Frauwirth, 167 Conn. 165, 168, 355 A.2d 39 (1974). If we were to adhere to the position set out by Lundy, the statute could have simply read, "[i]f the assessor finds an owner's report to be unacceptable for any reason," with no reference at all to the legislative language that "unacceptable for any reason" is expressly ref errant to "[i]f, in the process of verification for purposes of assessment under section 12-121c." In construing a statute, " 'the question before a court . is not what the legislature actually intended but what intention it expressed by the words that it used.' " Verrastro v. Sivertsen, supra, 220, quoting Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980); see also Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 98, 291 A.2d 721 (1971). "If" means "in the event that, in case." Webster's Third New International Dictionary. Thus, the phrase "unacceptable for any reason" clearly refers to the "verification" referred to in the statute. The tax commissioner had the authority under § 12-121d to review only the local assessor's decision finding "an owner's report . . . unacceptable" where such a report is "in the process of verification for the purposes of assessment under section 12-121c." It follows that if the assessor did not have authority to review a claim within this limitation, then the commissioner had no authority to review it. In other words, the tax commissioner's authority under § 12-12M extends only to reviewing an assessor's action in finding an owner's report "unacceptable for any reason" arising explicitly "in the process of verification . . . under section 12~121c." We, therefore, cannot accept the position advocated by Lnndy and we hold that the tax commissioner did not have authority to review Lundy's claim. It follows from this holding that the Superior Court did not have jurisdiction to hear and determine this action. See Groton v. Commission on Human Rights & Opportunities, 169 Conn. 89, 101, 362 A.2d 1359 (1975); Crouchley v. Pambianchi, 149 Conn. 512, 515, 182 A.2d 11 (1962). The trial court, therefore, should have dismissed the appeal. There is error, the judgment is set aside and the case is remanded with direction to dismiss the action for lack of jurisdiction. In this opinion Speziale, C. J., Peters and Parskey, Js., concurred. The property consisted of certain computers with an assessed value of $237,500. General Statutes § 12-121a through 12-121d have since been repealed by Public Acts 1975, No. 75-213, § 50, effective May 12, 1975. General Statutes $ 12-121b, entitled "Submission of lists of property not subject to assessment," provides: "The assessors in each municipality shall on or before the fifteenth day before the 1974 assessment date of sueh municipality, and annually thereafter, post on the sign posts therein, or publish in a newspaper published in such municipality or, if no newspaper is published therein, then in any newspaper published in the state and having a general circulation in sueh municipality, a notice requiring all persons therein who would have been liable to pay taxes on personal property acquired by them after the 1973 assessment date of sueh municipality except for the provisions of section 12-121a, to bring in written or printed lists of sueh property, belonging to them on the first assessment date following such notice, on or before the first day of the month following said assessment date. Such list shall be dated and signed under penalty of false statement and shall be on a form approved by the state tax commissioner and furnished by said assessors. Each sueh list shall include, with respect to each item of such property, the nature, cost, acquisition date and fair market value, determined by application of the rate of depreeiation allowed by said assessors under the method and schedule of depreciation applicable with respect to such property or similar property in the 1972 assessment year in the tax jurisdiction in which sueh property is located. After 1974, each such list shall also include, with appropriate designation, in addition to all new acquisitions, those items of such property no longer owned by the person submitting such list but which appeared on sueh person's list in the previous year. Any person who fails to file sueh list as herein provided shall be subject to a penalty assessment equal to the amount derived by multiplying the fair market value of the property required to be listed, as determined by the assessors, by the tax rate of such municipality for the year next preceeding." It argues that the appeal provisions of the statute are "sufficiently broad to enable the state tax commissioner to decide any [appeal by the taxpayer] under the statute, including a claim of lack of statutory notice." Because of the limited issues raised by this appeal, we need not discuss alternative avenues of relief which may have been available to Lundy.

Covello, J. On August 28, 1972, the plaintiff obtained a divorce from the defendant. As an incident to the decree, the state referee set out to the plaintiff a one-half interest in the former marital home at 63 Edward Street, Newington, which interest he had quitclaimed to his wife during the term of their marriage. The validity of that ruling and other matters concerning this divorce were thereafter reviewed by this court and no error was found. Varley v. Varley, 170 Conn. 455, 365 A.2d 1212 (1976); Varley v. Varley, 180 Conn. 1, 428 A.2d 317 (1980); Varley v. Varley, 181 Conn. 58, 434 A.2d 312 (1980). The plaintiff commenced the present action seeking a sale of the Edward Street property and a division of the proceeds. Counsel appeared for the defendant and the pleadings were closed. The court thereafter granted the plaintiff's motion for partition by sale in accordance with a stipulation and proposed judgment submitted by the parties through their counsel. Pursuant to the judgment, the premises were then sold at public auction. The defendant was the high bidder. The court approved, accepted and confirmed the committee's report and the proposed sale. A supplemental judgment entered in due course ordering distribution of the sale proceeds. Within this procedural framework, there lie innumerable pleadings filed by the defendant pro se directed at every aspect of the proceeding. The docket sheet contains ninety-eight entries. From the underlying judgment and the almost uniform denial of each of her claims, the defendant has appealed. She advanced thirty-five claims in her preliminary statement of issues and has pursued fifteen of them on appeal. We find no error. The defendant first claims error in the entry of the judgment authorizing the sale of the property. This order of sale was entered in accordance with a stipulation to that effect signed by the defendant's attorney. The general rule is that parties are bound by the procedural acts of their counsel. Monroe v. Monroe, 177 Conn. 173, 181, 413 A.2d 819, cert. denied, 446 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979); Collens v. New Canaan Water Co., 155 Conn. 477, 496, 234 A.2d 825 (1967). The burden is on the party claiming otherwise, to prove that this should not be the case. Monroe v. Monroe, supra, 182. The defendant asserted that the stipulated judgment was the product of a conspiracy and that she had not been informed. Despite her continued assertion of these otherwise uncorroborated claims, the trial court repeatedly rejected these essentially factual claims raised time after time throughout the course of the proceedings. The credibility of witnesses is a matter uniquely within the province of the trier. Corbin v. Corbin, 179 Conn. 622, 624-25, 427 A.2d 432 (1980). The defendant next claims that the court erred in accepting the committee's report, confirming the deed and sale and allowing compensation for the committee. She argues in part, that the quitclaim deed, whereby she originally received the Edward Street property from her former husband, eon- tained language prohibiting his ever reacquiring any interest in this property. She claims, therefore, that no interest should have been set out to him in the divorce. This being the case, she further claims , that there was no basis in the present action for the order directing the sale of the property. The language in the deed, which forever bars the grantor from claiming any right or title in the quitclaimed premises is the traditional language found in such deeds. It serves to extinguish any interest which the releasor may have in the real estate up to the time he tenders the instrument. It does not act as a bar to the releasor thereafter reacquiring an interest in the property from some other source such as an equitable decree incident to a divorce action. See Smith v. Groton, 147 Conn. 272, 276, 160 A.2d 262 (1960); Dart v. Dart, 7 Conn. 250, 256 (1828). The defendant further claims that she was erroneously barred from giving evidence as to moneys and other consideration which she had given her former husband at the time he quitclaimed the property to her. The parties' legal interests in the Edward Street property, considerations given therefor, and the eventual declaration of their respective equitable interests in the land are all matters which were properly the subject of the divorce proceedings. The divorce action was previ ously reviewed by this court and no error was found. Varley v. Varley, 170 Conn. 455, 365 A.2d 1212 (1976). Any claim to a greater interest in the land based on matters which predate the divorce decree is now barred by the doctrine of res judicata. Lechner v. Holmberg, 165 Conn. 152, 155, 328 A.2d 701 (1973). The defendant next challenges as unreasonable the amount of the fee awarded the committee. The reasonableness of committee fees is a matter within the sound discretion of the court. It is only in the case of a clear abuse of discretion by the trier that we may interfere. Hoenig v. Lubetkin, 137 Conn. 516, 525, 79 A.2d 278 (1951). Such is not the case here. Examination of the record discloses that the final bid price was $41,000. The report of the committee discloses numerous calls from the defendant, arrangements for advertising, placement of a sign, the receipt of telephone inquiries concerning the property, the conduct of an auction sale with forty to forty-five persons present, preparation of a bond for deed, preparation of a deed and representation at closing. We conclude that these facts constituted an adequate factual basis to support the finding of $2500 as reasonable compensation for the committee. The defendant next claims that the court erred in connection with a prospective ruling concerning the scope of evidence to be introduced at a hearing on a motion for supplemental judgment and determination of priorities. Examination of the record discloses that the court granted a motion to determine priorities and assigned the matter for future hearing. In assigning the hearing, the court issued a memorandum in which it stated that evidence as to capital improvements at the later hearing would be limited to the time period from the date of the divorce to the date of sale, any earlier considerations now being res judicata by virtue of the earlier divorce decree. The defendant claims that she was thereby prevented from introducing relevant evidence concerning the parties' respective financial contributions to the purchase of this property, subsequent capital improvements and the matter of the quitclaim deed previously discussed. There is nothing in the record, the briefs or the appendix that indicates that the defendant ever offered such evidence, that an objection thereto was sustained or, in fact, that such a hearing as ordered in the meniiorandum ever took place. Consequently, this claim presents nothing for this court to review. In order to raise properly such an issue before a reviewing authority, the appellant's brief must include the question or offer of exhibit, the objection and the ground upon which it was based, the ground upon which the evidence was claimed to be admissible, the ruling and any exception thereto. Practice Book §.3060F (c) (3). The defendant further claims error in the court's ruling with respect to her motion for disclosure and production. Examination of the record reveals that such a motion was filed on September 27, 1976. An objection was filed on October 5, 1976. There is no record, however, of any ruling on this objection or the motion to which it was directed. Again, this claim presents nothing for this court to review. The defendant next argues that the court erred in denying her motions to reopen and vacate dated January 31, 1977, and February 9, 1977, respectively. Both of these motions address again the issue of the language in the quitclaim deed given to the defendant by her former husband and the issue of the authority of her attorney to join in the motion for judgment by stipulation. These motions, their subject matter having been addressed and decided at an earlier stage in the proceedings, were properly denied as being a wasteful repetition. "Parties cannot be permitted to waste the time of courts by the repetition in new pleadings of elaims which have been set up on the record and overruled at an earlier stage of the proceedings." Hillyer v. Winsted, 77 Conn. 304, 306, 59 A. 40 (1904). The defendant next claims that the court erred on March 9, 1979, in taking up her claim for a jury trial, when such a matter was not assigned on that day's court calendar for hearing. Examination of the record discloses that the defendant agreed to have this matter heard, and we find no error in the court having done so. The defendant next claims that the court erred in denying her claim for a jury trial. General Statutes § 52-500 makes it clear that court ordered sales of real property are equitable proceedings, and we have so held. Gaer Bros., Inc. v. Mott, 147 Conn. 411, 415, 161 A.2d 782 (1960). General Statutes § 52-218 provides that the court may order factual issues in equitable proceedings to be tried by a jury of six. Use of the permissive language "may" connotes a clear legislative intent to authorize the court to exercise its discretion on this matter. The defendant claims no abuse of this discretion nor does the record disclose this to be the case. Therefore, we find no error in the court's refusal to order this matter tried to a jury. The defendant next claims that the court erred in denying her motion for nonsuit dated May 26, 1978. Examination of the record discloses that the motion was directed to the plaintiff's failure to file a previously requested copy of the judgment in the original divorce action. The motion also refers to the conspiracy to defraud the defendant of her interest in the Edward Street property and raises again the matter of the quitclaim deed given Mrs. Varley by her former husband, both of which claims had been argued earlier to the court. The record further discloses that on August 17, 1978, the plaintiff filed a supplemental compliance attaching a copy of the divorce judgment. Thereafter, on August 25, 1978, the court denied the defendant's motion. "Orders made pursuant to the rules on discovery are, generally speaking, within the sound discretion of the trial court." Kiessling v. Kiessling, 134 Conn. 564, 568, 59 A.2d 532 (1949). Since the missing judgment was promptly supplied and the other issues raised had been previously considered by the court, we find no abuse of the court's discretion in denying this motion. The defendant next argues that the court erred in denying her motion of February 21, 1979, to reopen and vacate the stipulated judgment of October 26, 1976. The claims made to the court were (1) that the judgment agreed to hy her counsel was done without her knowledge; (2) that the auction sale by a committee was unnecessary; (3) that the lawyers were engaged in a conspiracy; (4) that the premises were not appraised hy the committee and (5) that the withholding of interest on the sale proceeds being held hy the clerk was unconstitutional. The matters of the entry of the stipulated judgment and the claimed conspiracy have already been discussed and disposed of herein. Monroe v. Monroe, 177 Conn. 173, 181-82, 413 A.2d 819, cert. denied, 446 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). The necessity of the sale was conceded hy the parties through their proposed judgment hy stipulation of October 8, 1976, which provided for such a sale and which the court thereafter approved. The fact that the premises were not appraised does not constitute error. Proceedings hy way of a foreclosure by sale require an appraisal of the property to he sold. The present proceedings are not in the nature of a foreclosure hut the equitable sale of real property pursuant to General Statutes § 52-500. This latter statute contains no provisions requiring an appraisal. Proceeds of a committee sale of real property are required hy statute to he paid into court. The committee here conducted the auction sale on November 20, 1976. The sale was ratified and approved hy the court on January 24, 1977, with direction to convey the property on January 28, 1977. This occurred and, after deduction of expenses, , the net proceeds were paid into court and held by the clerk pending the further order of the court. The matter of the clerk's retention of the money without accrual of interest to the plaintiff or the defendant was not raised until February 21, 1979, when the defendant filed the motion to reopen and vacate the stipulated judgment. Other than the defendant's obviously tardy assertion that this long recognized statutory procedure is unconstitutional, we are not offered any explanation as to why this is the ease, nor do we see any reason so to hold. The defendant next argues that the court erred in hearing a motion for determination of priorities while she was without the benefit of counsel. Examination of the record discloses that at the time of this hearing, there were appearances by two counsel for the defendant in the file in addition to the defendant's pro se appearance. This was not a circumstance where appearing counsel were unavailable at the time assigned for hearing, but rather a situation where the defendant claimed that no attorney was any longer willing to come to court in her behalf. The defendant is unable to point to any legal authority standing for the proposition that a party must be represented by counsel in a civil matter, we know of no such authority, and do not so hold now. See Brasier v. Jeary, 256 F.2d 474, 476 (8th Cir), cert. denied, 358 U.S. 867, 79 S. Ct. 97, 3 L. Ed. 2d 99 (1958). The defendant next claims that the court erred in denying her motion to open and vacate judgment and supplemental judgment dated July 16, 1979. This thirty-three paragraph motion contains a full chronicle of the parties' ownership of the Edward Street property, their subsequent divorce action and the disposition therein, reviews again her claims against her counsel and the committee, describes the alleged conspiracy and advances for the first time a claim that the property was mis-described. The defendant argues that the court erred in refusing to hear testimony on the issues of conspiracy, the consideration previously given the plaintiff for his interest in the property, and the language of the quitclaim deed which allegedly precluded the plaintiff from reacquiring an interest in the property. She also claims that the court erroneously refused to accept her testimony on the issue of the property being misdescribed, the court having stated that, as a lay person, she was not competent to testify on such an irregularity. All of these issues except the matter of the land description had either been resolved in prior proceedings or had previously been addressed and decided in this case. There was no new claim concerning these matters. The court was therefore correct in refusing to readdress these issues, it being a wasteful repetition of the court's time. Hillyer v. Winsted, 77 Conn. 304, 306, 59 A. 40 (1904). The question of the defendant's competency to testify on technical real estate matters is an issue to be determined by the trier through an assessment of the nature of the technicality involved and the proposed witness' level of expertise concerning these matters. Since there was no offer of proof made with respect to either of these considerations, the court's exclusion of the testimony of the lay witness was a matter within its sound discretion. Oborski v. New Haven Gas Co., 151 Conn. 274, 280, 197 A.2d 73 (1964); Dunn v. Finley, 151 Conn. 618, 621, 201 A.2d 190, cert. denied, 379 U.S. 939, 85 S. Ct. 344, 13 L. Ed. 2d 349 (1964). The defendant offers no argument claiming that the court abused this discretion nor does an examination of the record disclose one. The defendant next claims error in the court's calculation of the amount to be divided. Examination of the supplemental judgment discloses approval of the following expenses: Hartford Courant - advertising $ 215.60 Frank C. Wishner - sign 77.63 Zuccardi Sposito Assn., Inc. - insurance 25.00 Barrett L. Krass - reimbursement for lumber for sign 4.10 Conveyance tax 47.30 Total expenses $ 369.63 Committee fee 2500.00 Total fees and expenses $2869.63 Thereafter, $46 was paid to the clerk of the superior court. Thus, for the purposes of calculating the division of the sale proceeds, the court concluded there were sums on hand as follows: Cross sales price $41,000.00 Less: Expenses of sale $ 369.63 Committee fee 2500.00 Court fee 46.00 Total fees and expenses 2915.63 Amount to be considered for purpose of the division of proceeds $38,084.37 This sum differs by $1000 from a figure of $39,084.37 earlier reported to be on hand. It is evident from an examination of the record, however, that it is the earlier figure which was in error and that the $38,084.37 used by the court in making the final division is the correct amount. Having arrived at $38,084.37, the court divided this sum by two and set out $19,042 to the plaintiff less $100 found due the defendant in consideration of her installation of a door. Since back taxes in the amount of $4734.12 had been paid out of the sale proceeds at the closing, the court's method of dividing the proceeds had the practical effect of charging to the defendant's share all of these taxes. She claims error in this calculation. Examination of the memorandum of decision discloses that the defendant had the exclusive use of the premises since the entry of the judgment on August 28, 1972, and that the plaintiff had received no benefit from the property during the period for which the taxes were adjusted. This being the case, it was within the court's province to adjust the proceeds payable to each party to reflect this equitable consideration. Levay v. Levay, 137 Conn. 92, 96, 75 A.2d 400 (1950); Neumann v. Neumann, 134 Conn. 176, 55 A.2d 916 (1947); Rentz v. Eckert, 74 Conn. 11, 16, 49 A. 203 (1901); Johnson v. Olmsted, 49 Conn. 509, 518-19 (1882). The defendant next claims that the court erred in awarding interest on the plaintiff's share of the sale proceeds from May 7, 1976, the date this action commenced, to July 12, 1979, the date of the entry of the final supplemental judgment. She claims that the interest should be calculated instead from the date of the closing, January 31, 1977. Her only offer with respect to this proposition is a mathematical calculation to that effect in her brief. Absent a discussion of this point, we consider the issue abandoned. " 'Assignments of error are also deemed to be abandoned where they are merely mentioned in the brief without any discussion of the particular issues mentioned.' Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 109, 291 A.2d 721 [1971]; Pluhowsky v. New Haven, 151 Conn. 337, 345, 197 A.2d 645 [1964]." Stoner v. Stoner, 163 Conn. 345, 349, 307 A.2d 146 (1972). The defendant finally argues that the court erred in not crediting her some $900 which she alone claimed was expended when the garage roof allegedly collapsed during a storm. The judge stated that he did not believe her testimony. This being the case, we may not find error as "it is in the sole province of the trier to pass upon the credibility of the witnesses and the weight to be accorded the evidence." Corbin v. Corbin, 179 Conn. 622, 625, 427 A.2d 432 (1980). There is no error. In this opinion the other judges concurred. The defendant's additional appendix contains a copy of the quitclaim deed which reads in part as follows: "To have and to hold, the premises, with the appurtenances thereof, unto the said releasee and unto her heirs and assigns, to them and their proper use and behalf so that neither the releasor nor any other person under me or them, shall hereafter have any claims, right or title in or to the premises or any part thereof, but therefrom 1 and they are by these presents forever barred and secluded." (Emphasis added.) The transcript of March 9, 1979, discloses, in part, the following: "The Court: You have a claim for the jury list, I understand. "Mrs. Varley: Yes, your honor. "The Court: Do you want to be heard on that today? "Mrs. Varley: Yes. I would like to have this heard by a jury. "The Court: All right. Why?" General Statutes § 52-500 provides in relevant part: "Any court of equitable jurisdiction may, upon the complaint of any person interested, order the sale of any estate, real or personal, owned by two or more persons . . . ." (Emphasis added.) General Statutes § 52-218 provides in relevant part: "Upon the application of either party, the court may order any issue or issues of fact in any aetion demanding equitable relief to be tried by a jury of six." (Emphasis added.) See General Statutes § 49-25. See General Statutes § 52-502. See General Statutes § 4-33.

Per Curiam. The plaintiff, Carling Electric, Inc., appealed to the Superior Court from an order issued by the defendant, commission on human rights and opportunities. The appeal was pursuant to § 31-126 of the General Statutes, which was then applicable. After the appeal was commenced, however, chapter 54 of the General Statutes, the Uniform Administrative Procedure Act (hereinafter UAPA) became operative. The Superior Court retained jurisdiction, and on April 3, 1974, sustained the appeal and remanded the cause to the commission for further proceedings. The court, in response to the plaintiff's motion, modified its judgment, holding that it did not possess the jurisdiction to remand or to make further directions to the agency involved, thus terminating the case. The defendant appeals from the granting of the motion to modify the judgment. Since the defendant's appeal was taken, however, this court decided Murphy v. Berlin Board of Education, 167 Conn. 368, 355 A.2d 265, and McDermott v. Commissioner of Children & Youth Services, 168 Conn. 435, 363 A.2d 103. These cases reaffirmed the proposition that the UAPA is applicable to appeals from administrative actions. It expressly provides jurisdiction for the reviewing court to remand and, to the extent that it conflicts with prior statutes, it operates to repeal them, unless they are exempted. General Statutes § 4-189; § 4-186— 4-188. General Statutes § 4-183 (g) concerning judicial review states in pertinent part: "The court may affirm the decision of the agency or remand the case for further proceedings." Since the original judgment was within the court's power and it was not required to grant the plaintiff's motion to modify the judgment as it indicated in its memorandum of decision, the order modifying the judgment should be vacated. There is error, the judgment is set aside and the case is remanded with direction to deny the plaintiff's motion to modify the judgment and to render judgment as on file except as modified in accordance with this opinion. General Statutes § 4-185, entitled "Application of chapter," states: "Except as to proceedings pending on January 1, 1972, this chapter applies to all agencies and agency proceedings not expressly exempted." It is manifest that the intent of this section is to forestall the disruption of proceedings in progress on January 1, 1972, which would otherwise be required to adopt the new procedures mandated by the UAPA. The commission's proceedings were not pending before the commission on January 1, 1972, having been completed May 27, 1970. Hence, the present ease does not come under this exception provided by the UAPA.

Shea, J. In each of these cases the state, with the permission of the trial court, has appealed from a judgment dismissing the information with prejudice pursuant to the state's own motion. The defendants have filed motions in this court to dismiss the appeals upon several grounds: (1) that the request for permission to appeal was so untimely that the trial court abused its discretion in granting it; (2) that, since it was the state which requested the dismissals, it cannot appeal therefrom; (3) that the state is really attempting to appeal an interlocutory ruling of the trial court which granted the motions of the defendants to suppress certain evidence in violation of the restriction of appellate jurisdiction to appeals from final judgment; and (4) that the state should have proceeded by writ of error. The central issues raised are (1) whether there can be any appellate review of the action of the trial court in suppressing evidence under our existing statutes and rules of practice; and (2) whether the procedure followed by the state is an appropriate means for obtaining such review. By separate informations each defendant was charged with violations of the dependency producing drug act, General Statutes § 19-443 through 19-504. These charges arose from evidence obtained as a result of a wiretap, authorized by three judges acting as the state wiretap panel, which was made of a telephone in a private residence in "Woodbury. See General Statutes § 54-41a through 54-41s. Upon motions of the defendants claiming the absence of probable cause to support the wiretap authorization, the trial court, Meehan, J., ordered the suppression of all evidence which had been obtained as a result of tapping the telephone involved. On December 23, 1981, the state represented to the trial court that because of the suppression order it had insufficient evidence to make out a prima facie case against the defendants at trial. It moved for a dismissal with prejudice in each case so that it might then apply for permission to appeal to this court for review of the order granting the motions to suppress. The defendants stated that they did not wish to avail themselves of their opportunity to seek dismissal of the informations pursuant to General Statutes § 54-56, which is applicable when "there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial." They objected to the state's motions and requested that their cases be assigned for trial. The trial court, Stodolink, J., granted the motion of the state and ordered that each case be dismissed with prejudice. At the hearing the state indicated that it intended to apply for permission to appeal from the judgments of dismissal in accordance with General Statutes § 54-96. A written motion for such permission was not filed until December 28, 1981, five days later. The defendants objected to the motion, and, after briefs and arguments, the court, Stodolink, J., granted the state's request in a memorandum filed on July 1, 1982'. The state appealed on the following day. I In claiming that the appeals should be dismissed because of the five day delay of the state in filing its written request for permission to appeal, the defendants rely upon State v. Carabetta, 106 Conn. 114, 119, 137 A. 394 (1927), which held that a determination to request such permission must be made at the time of judgment "so that the accused shall not be forthwith discharged." The evil perceived in granting a tardy request of the state to appeal was the injustice of dragging back into court a defendant who had reasonably assumed that his discharge meant that he was a free man no longer charged with a crime. State v. Carabetta, supra, 117. No such expectation could reasonably have been entertained by these defendants, however, because the state did express its intention to appeal at the time of judgment and the court refused to discharge the defendants when such a request was made during the proceeding. "In those cases in which the state, at the time judgment is rendered, expresses an intention to seek an appeal the defendant is not entitled to discharge until the state's motion to appeal is finally determined." State v. Avcollie, 174 Conn. 100, 108, 384 A.2d 315 (1977). The defendants were fully aware that the state intended to appeal. The state suggested applying immediately to the presiding judge, Glass, J., for permission to appeal bnt the defendants questioned the propriety of his considering the motion because of prior rulings he had made in the case., The defendants voiced no objection to presentation of the motion to a new presiding judge scheduled to start on January 4 or 5, 1982, and also requested that the motion be made in writing and printed on the docket so that it could be properly addressed. The state acted with reasonable promptness in filing the written motion because only one day, December 24, intervened between the date of judgment and the date the motion was filed when the clerk's office was required to be open. Practice Book §405. The trial court properly found the motion not to be untimely. n The fact that it was the state which requested the rendition of the judgments appealed from is the basis for the next ground of dismissal urged by the defendants. An appellant cannot ordinarily claim error in the action of the trial court which he has induced. Bansak v. Pawelczyk, 173 Conn. 520, 523, 378 A.2d 569 (1977); State v. Cobbs, 164 Conn. 402, 424, 324 A.2d 234, cert. denied, 414 U.S. 861, 94 S. Ct. 77, 38 L. Ed. 2d 112 (1973). We have recognized an exception to this principle where a party consents to the entry of a judgment against him when it is the only logical result at which the court could arrive given its previous rulings. Goodrich v. Alfred, 72 Conn. 257, 262, 43 A. 1041 (1899). We have not hesitated to review judgments entered because of the default of the appellant or with his consent where exceptional circumstances demanded such action in order to avoid injustice. Reilly v. State, 119 Conn. 217, 221, 175 A. 582 (1934); Shaw v. Spelke, 110 Conn. 208, 215-17, 147 A. 675 (1929). Where the adverse ruling is such as to preclude the party seeking or consenting to the dismissal from prevailing and the judgment is completely dispositive of the case, we see no reason to invoke the doctrine of appellant-induced error to bar an appeal. See annot., 23 A.L.R.2d 664, 680. In a criminal ease, such as the one before us, the state has no realistic option to proceed to trial and await the inevitable outcome where vital evidence has been suppressed. If because of the unavailability of the suppressed evidence a defendant has been acquitted, the principle of double jeopardy would prevent a new trial regardless of whether the exclusionary ruling was erroneous. See Sanabria v. United States, 437 U.S. 54, 64, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978); Fong Foo v. United States, 369 U.S. 141, 143, 82 S. Ct. 671, 7 L. Ed. 2d 629 (1962); State v. Flower, 176 Conn. 224, 226, 405 A.2d 655 (1978). If the judgment of dismissal with prejudice had been rendered upon a motion of the defendant under § 54-56 rather than upon its own motion, the state unquestionably could have appealed. We do not believe that the availability of appellate review should turn wholly upon the identity of the party who has invoked judicial recognition of the moribund status of the prosecution. Ill We are also unpersuaded by the argument of the defendants that the state is attempting to appeal an interlocutory ruling of the trial court in violation of the restriction of appellate jurisdiction to appeals from final judgments. A dismissal with prejudice is unquestionably a final judgment which the state may appeal. Practice Book § 819. In an appeal from such a judgment a party may claim error in any ruling of the trial court. Another contention is that the state will be permitted to obtain appellate review of a ruling on a motion to suppress which a defendant could not have at the same stage of the proceedings. State v. Chapnick, 30 Conn. Sup. 518, 297 A.2d 77 (1972). It is clear, however, that unless such pretrial review is allowed the state could never secure appellate scrutiny of such a ruling. A defendant, of course, may claim error in such a ruling upon his appeal from the judgment of conviction. We are aware that appeals from decisions upon motions to suppress evidence after commencement of prosecution have generally not been allowed in the absence of a judgment of conviction. Carroll v. United States, 354 U.S. 394, 77 S. Ct. 1332, 1 L. Ed. 2d 1442 (1957); Cogen v. United States, 278 U.S. 221, 49 S. Ct. 118, 73 L. Ed. 275 (1929); see DiBella v. United States, 369 U.S. 121, 82 S. Ct. 654, 7 L. Ed. 2d 614 (1962). In none of these cases, however, had the prosecution terminated in a judgment of dismissal with prejudice as in this instance. Many jurisdictions have adopted statutes or rules of practice authorizing appeals from orders granting motions to suppress evidence. See Ariz. Rev. Stat. Ann. § 13-4032 (7) (1978); Cal. Penal Code § 1538.5 (0) (Peering 1982); 111. Ann. Stat. C. 110A, § 604 (a) (1) (Smith-Hurd 1976); Minn. Stat. Ann. C. 49, § 29.03 (1979); N.Y. Crim. Proc. Law § 450.20 n.8 (McKinney 1971); Ohio Rev. Code Ann. Crim. R. 12 (J) (Baldwin 1982). The same result has been reached by judicial decision. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963); see State v. Collins, 24 Ohio St. 2d 107, 107-10, 265 N.E.2d 261 (1970) (court upheld as constitutional a court rule permitting the state to appeal an order granting a motion to suppress evidence). As a safeguard against abuse by the state, where such appeals are allowed, some demonstration is ordinarily required that the result of the suppression order be such as to terminate the prosecution effectively or to handicap it substantially. State v. Hicks, 301 Minn. 350, 222 N.W.2d 345 (1974); Commonwealth v. Bosurgi, supra, 63-64; State v. Collins, supra, 109-10; N.Y. Crim. Proc. Law § 450.50 (McKinney 1971); Ohio Rev. Code Ann. Crim. R. 12 (J) (Baldwin 1982). The choice we present to the state is more restrictive, namely, staking the outcome of the prosecution wholly upon a reversal of the decision upon the motion to suppress or proceeding to trial in the face of the exclusionary ruling. A decision by the state to obtain dismissal of a prosecution with prejudice is a sufficiently serious precondition to the light of appeal to provide adequate assurance that this procedure will not be resorted to lightly. IY A further claim of the defendants, that the state should be relegated to the use of a writ of error in obtaining review of the granting of a motion to suppress, is also unsound. First, the use of a writ of error would in no way overcome the objections which the defendants have raised to the appeal process based upon appellant-induced error and the absence of finality in the judgment. Second, the writ is ordinarily inappropriate for review of factual determinations, such as those usually entailed in deciding a motion to suppress. "Writs of error upon matters of law reach only those errors which appear of record." Corbett v. Matz, 72 Conn. 610, 611, 45 A. 494 (1900). Third, the availability of a writ of error does not preclude resort to " 'the more adequate and equitable process of appeal.' " Morehouse v. Employers' Liability Assurance Corporation, 119 Conn. 416, 420, 177 A. 568 (1935). We conclude that in cases like this one, where, as a result of the suppression of evidence before trial, a judgment of dismissal with prejudice fully dis-positive of the case has been rendered, the state may, with the permission of the trial court as provided in General Statutes § 54-96, obtain appellate review of that ruling. The motions to dismiss the appeals are denied. In this opinion the other judges concurred. "[General Statutes] See. 54-96. appeals by the state from superior court in criminal cases. Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate session of the superior court in the same manner and to the same effect as if made by the accused." Although General Statutes § 54-96 requires the permission, of the "presiding judge" for an appeal by the state, this reference has been construed to mean the judge who presided at the trial or another proceeding which is the subject of the appeal. See State v. Audet, 170 Conn. 337, 340, 365 A.2d 1082 (1976) (appeal from trial court, with permission, of order granting motion to dismiss); State v. Villafane, 164 Conn. 637, 638, 325 A.2d 251 (1973) (appeal from order granting plea in abatement and motion to quash); State v. LaSelva, 163 Conn. 229, 303 A.2d 721 (1972) (appeal from order sustaining demurrer). Counsel were apparently under the impression that the reference was to the judge presiding at the criminal session. See Practice Book § 951 through 956; General Statutes § 51-183e. The defendants maintain that the state has an opportunity to secure a reversal of the decision on the motion to suppress at the trial, because the same judge or a different one is not obliged to follow the earlier ruling if he is convinced that it was erroneous Breen v. Phelps, 186 Conn. 86, 98, 439 A.2d 1066 (1982); see State v. Deep, 181 Conn. 284, 435 A.2d 333 (1980). Such a possibility would not, of course, provide appellate review. The refusal of the trial court to modify the earlier ruling could not be the subject of an appeal because of the constitutional provision against double jeopardy. We note the adoption of Public Acts 1982, Ho. 82-17 (effective date October 2, 1982), which permits a defendant under certain circumstances to appeal the denial of his motion to suppress or motion to dismiss. This enactment has no effect upon the right of the state to appeal a ruling upon a motion to suppress.

Hull, J. The sole issue in this appeal is whether the provision in General Statutes § 49-34 (1) (C), directing that a certificate of mechanic's lien be sworn to by the claimant, requires a written recital of the oath-taking on the certificate. We hold that the oath must appear in writing on the certificate of mechanic's lien for it to be valid under the statute. Accordingly, we conclude that the trial court erred in upholding the validity of a certificate of mechanic's lien that contained no written oath. The facts pertinent to this appeal are as follows. Pursuant to General Statutes § 49-34, on November 16, 1987, the defendant electrical contractor filed a certificate of mechanic's lien in Danbury for $494,768, as security for electrical work in the construction of a J. C. Penney store in Danbury. On March 25, 1988, the plaintiff, J. C. Penney Properties, Inc., filed an application to discharge or reduce the certificate of mechanic's lien. General Statutes § 49-35a. At the hearing on the application, the plaintiff argued that the certificate failed to satisfy the requirement that it be sworn in accordance with General Statutes § 49-34 (1) (C). The defendant argued that the statute requires only a signing under oath, and that the oath need not be set forth in the document itself. Clifford Gideon, the defendant's officer who signed the certificate, testified that Richard Raphael, an attorney, had administered an oath prior to the signing of the certificate. Raphael also testified that he had taken Gideon's statement under oath. The court, Hickey, J., in an oral opinion, denied the plaintiff's application. This appeal followed. The parties do not dispute that Gideon acknowledged the certificate of mechanic's lien before Raphael. Nor is there any question that such an acknowledgment is not equivalent to an oath swearing to the contents of the certificate. "It is not uncommon for the legislature to require that certain documents be acknowledged or verified. Such an acknowledgment is a public declaration or a formal statement of the person executing an instrument made to the official authorized to take the acknowledgment that the execution of that instrument was his free act and deed. . On the other hand, a requirement that a document be 'sworn to' contem plates the execution of an affidavit that the facts contained in it are true. 3 Am. Jur. 2d 380, Affidavits, § 2." (Citations omitted.) State v. Wolfe, 156 Conn. 199, 205, 239 A.2d 509 (1968). "An acknowledgment is a verification of the fact of the execution of the instrument but not of its contents. 1 Am. Jur. 316 § 2, 343 § 70; 1 Words & Phrases 620; Pittis v. Abrams, 129 N.Y.S.2d 216, 217 [1954]. A verification, on the other hand, is a sworn statement of the truth of the facts stated in the instrument verified. It always involves the administration of an oath. 1 Am. Jur. 942 § 13, 949; 44 Words & Phrases 138, 142." Bell & Zajicek, Inc. v. Heyward-Robinson Co., 23 Conn. Sup. 296, 298, 182 A.2d 339 (1962). We have long endorsed a policy favoring liberal construction of claimed inadequacies in certificates of mechanics' liens in order to achieve the remedial purposes of the mechanics' lien statutes. "Provisions of mechanics' lien law should be liberally construed so as to reasonably and fairly implement its remedial intent." H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981). We have also recognized, however, that such a policy has limitations: "[T]he principles that guide our interpretation of mechanic's lien legislation are well settled. Although this legislation creates a statutory lien in derogation of the common law . its remedial purpose to furnish security for a contractor's labor and materials requires a generous construction. . . . Generosity of spirit does not, however, permit departure from reasonable compliance with the specific provisions of the statute. Stone v. Rosenfield, [141 Conn. 188, 191, 104 A.2d 545 (1954)]; City Lumber Co. v. Borsuk, [131 Conn. 640, 645, 41 A.2d 775 (1945)]." (Citations omitted.) Camputaro v. Stuart Hardwood Corporation, 180 Conn. 545, 550-51, 429 A.2d 796 (1980). In accordance with this policy, our courts have been liberal in validating liens despite claimed errors on the face of the lien certificate where the mistake was made in good faith and no resulting prejudice was claimed. See, e.g., H & S Torrington Associates v. Lutz Engineering Co., supra, 155-56 (copy of certificate served on owner by a subcontractor failed to state its intent to file a lien); Morici v. Jarvie, 137 Conn. 97, 102, 75 A.2d 47 (1950) (misstatement of amount due); Pierce, Butler & Pierce Mfg. Corporation v. Enders, 118 Conn. 610, 615, 174 A. 169 (1934) (subcontractor mislabeled as contractor and agent); Burque v. Naugatuck Lumber Co., 113 Conn. 350, 353, 155 A. 414 (1931) (defect in description); Peck v. Brush, 89 Conn. 554, 556-57, 94 A. 981 (1915) (inclusion of extra land in certificate); Westland v. Goodman, 47 Conn. 83, 86 (1879) (erroneous date of completion of work). The defendant, however, has cited no Connecticut case in which a court has validated a certificate of mechanic's lien despite the clear absence of a necessary statutory element of the certificate, nor have we found such a case. Three Connecticut cases lead us to conclude that the liens in this case are invalid. Bell & Zajicek, Inc. v. Heyward-Robinson Co., supra, is the closest on point. In that case, the Superior Court held that a certificate of mechanic's lien that was merely acknowledged, but not sworn to, was invalid. The only distinction between the present case and Bell & Zajicek, Inc., is the attempted validation of the certificate in this case by the testimony of the oath taker. The case of Kelly v. Alling, 84 Conn. 487, 80 A. 782 (1911), is persuasive by analogy. In Kelly, General Statutes (1902 Rev.) § 4138 allowed the defendant prop erty owner credit for all the payments he may have made in good faith to an original contractor before receiving notice of a claim of lien by a subcontractor. We held that the notice referred to in § 4138 referred only to the statutory notice described in General Statutes (1902 Rev.) § 4137. We concluded that oral notice and notice by letter were not proof that payments by the owner to the contractor, in accordance with the contract, were not made in good faith, and that the letter was properly excluded from evidence. We reach back 169 years for the most cogent analogy. In Pendleton v. Button, 3 Conn. 406 (1820), the defendant proposed to prove that title to certain land was in one Stoddard, and to this end offered in evidence a deed that had never been acknowledged in writing, together with accompanying testimony that a parol acknowledgment was actually made. We stated: "This evidence was rejected; and most correctly. It is provided by statute, that no deed shall be accounted complete in law, to convey real estate, but such as is written witnessed, acknowledged, and recorded. Tit. 142, c. 1. s. 7. The acknowledgment, to be recorded, must necessarily, be in writing; and such is the invariable practice. To the record all men recur, for the purpose of ascertaining the title of lands; and to satisfy the enquiry, a written acknowledgment is indispensably necessary." (Emphasis in original.) Id., 412. We conclude that a certificate of mechanic's lien under General Statutes § 49-34 is sufficiently like a deed of land to make Pendleton dispositive of this case. Section 49-34 (1) provides that the "certificate in writing . . . shall be recorded by the town clerk with deeds of land . . . . " Unlike the effect of a mere notice, as claimed by the defendant, a lien certificate may effect a transfer of land title by means of a foreclosure of the lien. See City Lumber Co. of Bridgeport, Inc. v. Murphy, 120 Conn. 16, 19, 179 A. 339 (1935) ("[i]n all essential respects the attributes of foreclosure of mortgages apply to mechanics' liens"). Moreover, our conclusion accords with common sense. "In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result." Stoni v. Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979). The defendant argues that the statute does not require that the swearing to the contents of the certificate be in writing. In considering a stat-' ute that authorizes a certificate of mechanic's lien in writing, however, we cannot ascribe to the legislature an intent that an essential part of this certificate need not be in writing. Such a certificate may take precedence over prior encumbrances and may furnish the basis for a foreclosure of the subject premises. General Statutes § 49-34 describes the contents of such a certificate with great detail. To validate a certificate without a written oath would invite confusion, delay and uncertainty into an area where certainty and complete compliance with the statutory requirements are of paramount importance to interested parties and the general public. As the Supreme Judicial Court of Massachusetts said, in a case concerning a statutory lien arising out of labor or materials furnished in a public building project: "There are practical considerations of importance . The sworn statement is designed in part to be the basis of action by others who are entitled to like relief and by public officers. To hold there need be no [sworn statement] attached would open the door to fraud difficult to detect." Cook Borden & Co. v. Commonwealth, 293 Mass. 174, 180, 199 N.E. 551 (1936). We hold that the mechanic's lien at issue in this case is invalid because it did not contain a written oath that it had been sworn to by the signer. There is error, the judgment is set aside and the case is remanded to the trial court with direction to render judgment discharging the lien. In this opinion the other justices concurred. "[General Statutes] Sec. 49-34. certificate of lien to be recorded and notice given to owner. A mechanic's lien is not valid, unless the person performing the services or furnishing the materials, (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land, (A) describing the premises, the amount claimed as a lien thereon, the name or names of the person against whom the lien is being filed and the date of the commencement of the performance of services or furnishing of materials, (B) stating that the amount claimed is justly due, as nearly as the same can be ascertained, and (C) subscribed and sworn to by the claimant, and (2) within the same time, or prior to the lodging of the certificate but not later than thirty days after lodging the certificate, serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35." The defendant filed an identical second certificate on November 19,1987, to cure a perceived defect in service. We consider both certificates as one. The plaintiff briefed the issue as follows: "Whether the trial court erred in denying plaintiff's application for discharge or reduction of mechanic's lien, by finding the defendant complied with Connecticut General Statutes § 49-34 (1) (C) requiring the certificate of mechanic's lien be sworn to, on the basis of parol evidence, when the certificate of mechanic's lien itself does not indicate an oath was administered or otherwise sworn to." The defendant stated the issue as follows: "Whether the trial court erred in considering parol evidence to determine that the certificate of mechanic's lien was sworn to as required by Connecticut General Statutes § 49-34 (1) (C)." We believe the parties have misstated the issue. This case is not about the parol evidence rule. It concerns simply the validity of an oath on a mechanic's lien not in writing on the certificate of lien. The last portion of the defendant's Exhibit 3 provides: "On this the 16th day of November, 1987, before me, RICHARD H. RAPHAEL, the undersigned officer, personally appeared, CLIFFORD S. GIDEON, who acknowledged himself to be the Vice President Finance of PETER M. SANTELLA COMPANY, INC., a Corporation, and that he, as such Vice President Finance, being authorized so to do, executed the foregoing instrument of the purposes therein contained, by signing the name of the corporation by himself as Vice President Finance. "In witness whereof I hereunto set my hand. ISI_ Richard II. Raphael Commissioner of the Superior Court" The last portion of the defendant's Exhibit 4 provides: "On the the 17th day of November, 1987, before me, RICHARD H. RAPHAEL, the undersigned officer, personally appeared, CLIFFORD S. GIDEON, who acknowledged himself to be the Vice President Finance of PETER M. SANTELLA COMPANY, INC., a Corporation, and that he, as such Vice President Finance, being authorized so to do, executed the foregoing instrument of the purposes therein contained, by signing the name of the corporation by himself as Vice President Finance. "In witness whereof I hereunto set my hand. ISI_ Richard II. Raphael Commissioner of the Superior Court" General Statutes (1902 Rev.) § 4138 provides: "No such lien shall attach to any building or its appurtenances, or to the land on which the same may stand, in favor of any person, to a greater amount in the whole than the price which the owner agreed to pay for such building and its appurtenances; and when there shall be several claimants, and the amount of their united claims shall exceed such price, the claimants, other than the original contractor, shall be first paid in full, if the amount of such price is sufficient for that purpose; but if not, it shall be apportioned among the claimants having such liens, other than the original contractor, in proportion to the amount of the debts due them respectively; and the court having jurisdiction thereof, on application of any person interested, may direct the manner in which such claims shall be paid; but in determining the amount to which any lien or liens shall attach upon any land or building, the owner of such land or building shall be allowed whatever payments he shall have made, in good faith, to the original contractor or contractors, before receiving notice of such lien or liens. No payments made in advance of the time stipulated in the original contract shall be considered as made in good faith, unless notice of intention to make such payment shall have been given in writing to each person known to have furnished materials or rendered services at least five days before such payment is made." General Statutes (1902 Rev.) § 4137 provides: "No person other than the original contractor for the construction, raising, removal, or repairing of the building, or a subcontractor, whose contract with such original contractor is in writing, and has been assented to in writing by the other party to such original contract, shall be entitled to claim any such lien, unless he shall, after commencing, and not later than sixty days after ceasing, to furnish materials or render services for such construction, raising, removal, or repairing, give written notice to the owner of such building that he has furnished or commenced to furnish materials, or rendered or commenced to render services, and intends to claim a lien therefor on said building; which shall be served upon said owner, if he resides in the same town in which said building is being erected, raised, removed, or repaired, by any indifferent person, by leaving with him or at his usual place of abode a true and attested copy thereof; and if said owner does not reside in said town, but has a known agent therein, such notice may be so served upon said agent, otherwise it may be served by any indifferent person, by mailing a true and attested copy of said notice to such owner at the place where he resides; and when there shall be two or more owners, such notice to one of them shall be notice to all; and said notice with the return of the person who served it indorsed thereon shall be returned to the original maker thereof within said period of sixty days. No subcontractor, without a written contract complying with the provisions of this section, and no person who furnishes material or renders services by virtue of a contract with the original contractor or with any subcontractor, shall be required to obtain an agreement with, or the consent of, the owner of the land, as provided in § 4135, to enable him to claim a lien under this section."

Per Curiam. This action to recover an unsatisfied final judgment was commenced under General Statutes § 38-175 on March 26,1976, against the defendant insurer, Aetna Life and Casualty Company, hereinafter designated as Aetna, by the plaintiff, a judgment subrogee of Peter F. Temelini. In its answer, Aetna, in effect, denied its liability. It subsequently filed a disclosure of defense claiming that the insured, Temelini, had failed to perform all the conditions and obligations under the terms of the policy involved. On September 16, 1977, Aetna filed a motion for summary judgment accompanied by an affidavit and other documentary evidence. At no time did the plaintiff file a counteraffidavit or other proof in opposition to this motion, nor did he move for a continuance. A summary judgment was granted and the plaintiff has appealed. In his appeal the plaintiff attacks the findings of the trial court as not supported by the evidence, as well as the court's conclusions drawn from said findings. It is well settled that the "validity of such a claim is tested by the evidence printed in the appendices to the briefs. Practice Book §718; State v. Vars, 154 Conn. 255, 258, 224 A.2d 744." Klein v. Chatfield, 166 Conn. 76, 78-79, 347 A.2d 58 (1974). On examination we find that the evidence set forth in the defendant's appendix, in its brief and in the record fully supports the challenged findings. When the plaintiff was injured at Temelini's restaurant on July 31, 1969, Temelini was insured by the defendant. On September 26,1969, the plaintiff's counsel sent a letter to Temelini informing him that the plaintiff intended to assert a claim for personal injuries incurred at the restaurant. The letter stated that the suit was being brought under General Statutes §30-102, the dram shop act. Temelini forwarded this letter to Aetna which advised him that it would not defend the action because his insurance policy had an exclusion for dram shop act actions. On July 23,1970, the plaintiff instituted an action for personal injuries in two counts, one of which was in common-law negligence. Aetna did not receive notice of the pendency of that action until October 20, 1972. Judgment was rendered in that action on November 4, 1975, for $14,415.55. That judgment has not been paid. The insurance policy under which Temelini was insured by the Aetna provided that "if claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative." Aetna filed its motion for summary judgment on September 16, 1977. It included an affidavit that it had not received notice of the action of Kolibczynski v. Temelini, Superior Court, Hartford County, No. 166922, brought July 23,1970, until October 20,1972. Attached to the motion was the insurance policy which included the above quoted provision. "To oppose the motion for summary judgment successfully, the defendants had to recite facts in accordance with Practice Book § 300 which contradicted those stated in the plaintiff's affidavit. Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382; Dorazio v. M. B. Foster Electric Co., 157 Conn. 226, 229, 253 A.2d 22." Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 5, 357 A.2d 484 (1975). Aetna's affidavit showed a lapse of notice of over two years from the filing of the case. The policy required that the suit papers be "immediately" forwarded to the defendant. The insured's duty to comply with the insurance policy in forwarding the complaint and all suit papers was a condition precedent to the defendant's duty to defend. Arton v. Liberty Mutual Ins. Co., 163 Conn. 127, 131-32, 302 A.2d 284 (1972). The plaintiff chose not to oppose the defendant's affidavit by a counter-affidavit or other documentary evidence as required by § 299 of the 1963 Practice Book. Therefore, we find that the trial court was correct in ruling, based on the pleadings and documents before it, that there were no genuine issues as to any material fact, and in granting a summary judgment for the defendant. There is no error. '[General Statutes] Sec. 38-175. liability op insurer under liability policy. Each insurance company which issues a policy to any person, firm or corporation, insuring against loss or damage on account of the bodily injury or death by accident of any person, or damage to the property of any person, for which loss or damage sueh person, firm or corporation is legally responsible, shall, whenever a loss occurs under such policy, become absolutely liable, and the payment of sueh loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss, damage or death occasioned by such casualty. No sueh contract of insurance shall be canceled or annulled by any agreement between the insurance company and the assured after the assured has become responsible for sueh. loss or damage, and any sueh cancellation or annulment shall be void. Upon the recovery of a final judgment against any person, firm or corporation by any person, ineluding administrators or executors, for loss or damage on account of bodily injury or death or damage to property, if the defendant in such action was insured against sueh loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, sueh judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in sueh action could have enforced his claim against sueh insurer had sueh defendant paid such judgment."

Bogdanski, J. On July 9,1776, a band of patriots, hearing news of the Declaration of Independence, toppled the equestrian statue of King George III, which was located in Bowling Green Park in lower Manhattan, New York. The statue, of gilded lead, was then hacked apart and the pieces ferried over Long Island Sound and loaded onto wagons at Nor-walk, Connecticut, to be hauled some fifty miles northward to Oliver Wolcott's bullet-molding foundry in Litchfield, there to be cast into bullets. On the journey to Litchfield, the wagoners halted at Wilton, Connecticut, and while the patriots were imbibing, the loyalists managed to steal back pieces of the statue. The wagonload of the pieces lifted by the Tories was scattered about in the area of the Davis swamp in Wilton and fragments of the statue have continued to turn up in that area since that time. Although the above events have been dramatized in the intervening years, the unquestioned historical facts are: (1) the destruction of the statue; (2) cartage of the pieces to the Wolcott foundry; (3) the pause at Wilton where part of the load was scattered over the Wilton area by loyalists; and (4) repeated discoveries of fragments over the last century. In 1972, the defendant, Louis Miller, determined that a part of the statue might be located within property owned by the plaintiffs. On October 16 he entered the area of the Davis Swamp owned by the plaintiffs although he knew it to be private property. With the aid of a metal detector, he discovered a statuary fragment fifteen inches square and weighing twenty pounds which was embedded ten inches below the soil. He dug up this fragment and removed it from the plaintiffs' property. The plaintiffs did not learn that a piece of the statue of King George III had been found on their property until they read about it in the newspaper, long after it had been removed. In due course, the piece of the statue made its way back to New York City, where the defendant agreed to sell it to the Museum of the City of New York for $5500. The museum continues to hold it pending resolution of this controversy. In March of 1973, the plaintiffs instituted this action to have the fragment returned to them and the case was submitted to the court on a stipulation of facts. The trial court found the issues for the plaintiffs, from which judgment the defendant appealed to this court. The sole issue presented on appeal is whether the claim of the defendant, as finder, is superior to that of the plaintiffs, as owners of the land upon which the historic fragment was discovered. Traditionally, when questions have arisen concerning the rights of the finder as against the person upon whose land the property was found, the resolution has turned upon the characterization given the property. Typically, if the property was found to be "lost" or "abandoned," the finder would prevail, whereas if the property was characterized as "mislaid," the owner or occupier of the land would prevail. Lost property has traditionally been defined as involving an involuntary parting, i.e., where there is no intent on the part of the loser to part with the ownership of the property. Foster v. Fidelity Safe Deposit Co., 264 Mo. 89, 174 S.W. 376 (1915); Kuykendall v. Fisher, 61 W. Va. 87, 56 S.E. 48 (1906); 1 Am. Jur. 2d 4, Abandoned, Lost, and Unclaimed Property § 2; annot., 170 A.L.R. 706. Abandonment, in turn, has been defined as the voluntary relinquishment of ownership of property without reference to any particular person or purpose; Ellis v. Brown, 177 F.2d 677 (6th Cir. 1949); Jackson v. Sternberg, 186 Or. 129, 200 P.2d 376 (1948), rehearing denied, 186 Or. 129, 205 P.2d 562 (1949); annot., 170 A.L.R. 708; i.e., a "throwing away" of the property concerned; Foulke v. New York Consolidated R. Co., 228 N.Y. 269, 273, 127 N.E. 237 (1920); while mislaid property is defined as that which is intentionally placed by the owner where he can obtain custody of it, but afterwards forgotten. Foster v. Fidelity Safe Deposit Co., supra; Loucks v. Gallogly, 1 Misc. 22, 23 N.Y.S. 126 (1892); annot., 9 A.L.R. 1388, 1390. It should be noted that the classification of property as "lost," "abandoned," or "mislaid" requires that a court determine the intent or mental state of the unknown party who at some time in the past parted with the ownership or control of the property. The trial court in this case applied the traditional approach and ruled in favor of the landowners on the ground that the piece of the statue found by Miller was "mislaid." The factual basis for that conclusion is set out in the finding, where the court found that "the loyalists did not wish to have the pieces [in their possession] during the turmoil sur rounding the Revolutionary War and hid them in a place where they could resort to them [after the war], hut forgot where they put them." The defendant contends that the finding was made without evidence and that the court's conclusion "is legally impossible now after 200 years with no living claimants to the fragment and the secret of its burial having died with them." While we cannot agree that the court's conclusion was legally impossible, we do agree that any conclusion as to the mental state of persons engaged in events which occurred over two hundred years ago would be of a conjectural nature and as such does not furnish an adequate basis for determining rights of twentieth century claimants. The defendant argues further that his rights in the statue are superior to those of anyone except the true owner (i.e., the British government). He presses this claim on the ground that the law has traditionally favored the finder as against all but the true owner, and that because his efforts brought the statue to light, he should be allowed to reap the benefits of his discovery. In his brief, he asserts: "As with archeologists forever probing and unearthing the past, to guide man for the betterment of those to follow, explorers like Miller deserve encouragement, and reward, in their selfless pursuit of the hidden, the unknown." 'There are, however, some difficulties with the defendant's position. The first concerns the defendant's characterization of himself as a selfless seeker after knowledge. The facts in the record do not support such a conclusion. The defendant admitted that he was in the business of selling metal detectors and that he has used his success in finding the statue as advertising to boost Ms sales of such metal detectors, and that the advertising has been financially rewarding. Further, there is the fact that he signed a contract with the City Museum of New York for the sale of the statuary piece and that he stands to profit thereby. Moreover, even if we assume his motive to be that of historical research alone, that fact will not justify his entering upon the property of another without permission. It is unquestioned that in today's world even archeologists must obtain permission from owners of property and the government of the country involved before they can conduct their explorations. Similarly, mountaineers must apply for permits, sometimes years in advance of their proposed expeditions. On a more familiar level, backpackers and hikers must often obtain permits before being allowed access to certain of our national parks and forests, even though that land is public and not private. Similarly, hunters and fishermen wishing to enter upon private property must first obtain the permission of the owner before they embark upon their respective pursuits. Although few cases are to be found in this area of the law, one line of eases which have dealt with this issue has held that except where the trespass is trivial or merely technical, the fact that the finder is trespassing is sufficient to deprive him of his normal preference over the owner of the place where the property was found. Barker v. Bates, 30 Mass. (13 Pick.) 255, 23 Am. Dec. 678 (1832); Brown, Personal Property (2d Ed.) §12, p. 24, n.10; Hibbert v. McKiernan, 2 K.B. 142 (1948). The basis for the rule is that a wrongdoer should not be allowed to profit by his wrongdoing. Note, 21 Minn. L. Rev. 191 (1937); Morton, "Public Policy and the Finders Cases," 1 Wyo. L.J. 101, 105 (1947). Another line of cases holds that property, other than treasure trove, which is found embedded in the earth is the property of the owner of the locus in quo. Allred v. Biegel, 240 Mo. App. 818, 219 S.W.2d 665 (1949) (prehistoric Indian canoe); Ferguson v. Ray, 44 Or. 557, 77 P. 600 (1904); Schley v. Couch, 155 Tex. 195, 284 S.W.2d 333 (1955); South Staffordshire Water Co. v. Sharman, 2 Q.B. 44 (1896); Elwes v. Brigg Gas Co., 33 Ch. 562 (1886) (prehistoric boat); 1 Am. Jur. 2d 20, Abandoned, Lost, and Unclaimed Property § 21; 1 Am. Jur. 2d 6, op. cit., § 4; annot., 170 A.L.R. 708; Brown, Personal Property (2d Ed.) § 12, pp. 26, 27. The presumption in such cases is that possession of the article found is in the owner of the land and that the finder acquires no rights to the article found. Ferguson v. Ray, supra; Burdick v. Chesebrough, 94 App. Div. 532, 88 N.Y.S. 13 (1904); Groover v. Tippins, 51 Ga. App. 47, 179 S.E. 634 (1935) (dictum). The defendant, by his own admission, knew that he was trespassing when he entered upon the property of the plaintiffs. He admitted that he was told by Gertrude Merwyn, the librarian of the Wilton Historical Society, before he went into the Davis Swamp area, that the land was privately owned and that Mrs. Merwyn recommended that he call the owners, whom she named, and obtain permission before he began his explorations. He also admitted that when he later told Mrs. Merwyn about his discovery, she again suggested that he contact the owners of the property, but that he failed to do so. In the stipulation of facts submitted to the court, the defendant admitted entering the Davis Swamp property "with the belief that part of the 'King George Statue' . . . might be located within said property and with the intention of removing [the] same if located." The defendant has also admitted that the piece of the statue which he found was embedded in the ground ten inches below the surface and that it was necessary for him to excavate in order to take possession of his find. In light of those undisputed facts the defendant's trespass was neither technical nor trivial. We conclude that the fact that the property found was embedded in the earth and the fact that the defendant was a trespasser are sufficient to defeat any claim to the property which the defendant might otherwise have had as a finder. Where the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court's action if proper grounds exist to support it. Morris v. Costa, 174 Conn. 592, 392 A.2d 468; DiMaggio v. Cannon, 165 Conn. 19, 24, 327 A.2d 561. The present case falls within the ambit of that principle of law and we affirm the decision of the court below. There is no error. In this opinion the other judges concurred. The fascinating story of the journey which these pieces of lead took following the revolution is fully narrated in the New York Times of February 4, 1973; Nooks and Corners of Old New York (American Heritage series, Charles Scribner's 1899); Andrist, "Alas, Poor George, Where Is Your Head?" Smithsonian, September, 1974, and in numerous books familiar to students of American history. Treasure trove has traditionally been strictly and narrowly defined as "any gold or silver in eoin, plate, or bullion found concealed in the earth or in a house or other private place." 1 Am. Jur. 2d 6, Abandoned, Lost, and Unclaimed Property § 4. This strict definition is well established in American law. Ferguson v. Fay, 44 Or. 557, 77 P. 600 (1904); Danielson v. Roberts, 44 Or. 108, 74 P. 913 (1904) (gold coin); Zech v. Accola, 253 Wis. 80, 33 N.W.2d 232 (1948) (paper certificates); 1 Am. Jur. 2d 6, op. cit., § 4; annot., 170 A.L.R. 707. Since the fragment of the statue recovered by the defendant was of gilded lead, he makes no claim that the fragment constituted treasure trove.

Cotter, C. J. On June 14, 1971, the defendant commissioner, pursuant to § 13a-73 (b) and 13a-73 (f) of the General Statutes, filed with the clerk of the Superior Court in Fairfield County a certificate of taking and assessment of damages relating to certain real property owned by the plaintiffs and located in the town of Wilton. Before the talcing, the plaintiffs owned a total of 96.34 acres, from which the defendant took by eminent domain a 31.3 acre strip of land, on which a number of buildings were situated, together with easements and rights-of-way over the remaining property for the purpose of the relocation of U.S. route 7, also know as the Norwalk-Danbury Road and Danbury Road. As a result of the taking of the land and buildings thereon, the plaintiffs were left with two separate parcels of land: a 57.223 acre tract located south of the strip taken on which the main residence, a pond and a driveway were situated; and a triangular shaped 7.817 acre tract located north of the taking. The damages assessed by the defendant by virtue of the taking were $243,500. The plaintiffs, pursuant to § 13a-76 of the General Statutes, filed a timely appeal to the Superior Court from the defendant's assessment of damages, claiming that the damages fixed by the defendant were inadequate, and seeking a review of the assessment and a reappraisal of the damages. Thereupon, the court ordered the appointment of a state referee (Hon. Sidney A. Johnson) to hear the plaintiffs' appeal. General Statutes § 13a-76. In accordance with a further application, the court ordered the appointment of two additional referees (Hon. James E. Murphy and Hon. Samuel Mellitz) to act in this matter. Two members of the committee concluded that, before the taking, the fair market value of the entire subject property, including existing buildings and improvements, was $1,010,725. One member of the committee, however, Honorable Samuel Mellitz, concluded that, due to the existence of a reasonable probability of a zone change, the before-taking fair market value of the plaintiffs' land and buildings totaled $1,920,454. The full committee was in substantial agreement regarding the fair market value of the land remaining after the taking — the majority found the after-taking value to be $1,344,359, while the dissent set a value of $1,344,429. But since the majority concluded that "the 'after taking' value was the direct result of special benefits conferred upon the remaining land," and since its "before taking" valuation of the entire tract was less than the market value of the land remaining after the taking, it concluded that the plaintiffs sustained no damages as the result of the taking and that they received special benefits of $333,643. The dissenting member of the committee, however, concluded that damages resulting from the taking amounted to $576,025. From the judgment of the majority of the committee of three state referees ordering that the plaintiffs pay to the defendant the amount of the benefits in the sum of $333,643 and interest to the date of payment, the plaintiffs have appealed to this court. Although the plaintiffs make what might be regarded as a "wholesale attack" on the majority's finding; see Scribner v. O'Brien, Inc., 169 Conn. 389, 391, 363 A.2d 160; the pertinent claims of error raised by the plaintiffs in this appeal may be summarized in the following manner: (1) the findings and a judgment thereupon must be made by unanimous act of the entire committee of three referees pursuant to § 52-434a (b); (2) the issue of benefits was not within the jurisdiction of the court and the judgment was therefore void; (3) if the question of benefits was properly considered, benefits may not be assessed in excess of the damages sustained; and (4) the majority erred in its conclusion regarding the market value of the subject property before the taking. Our disposition of the first two issues raised by the plaintiffs makes it unnecessary to address the remaining issues. I It is settled law in this state that "where the determination of matters of public concern as distinguished from those of private confidence are committed to a group of persons, the decision of a majority, at least where all have acted together in hearing and considering the matter at issue, is a valid and effectual performance of the duty entrusted to them. Crone v. Daniels, 20 Conn. 331, 333; Gallup v. Tracy, 25 Conn. 10, 17; Martin v. Lemon, 26 Conn. 192, 193; Smith v. New Haven, 59 Conn. 203, 211, 22 Atl. 146." Dunn v. Flynn, 107 Conn. 272, 274, 140 A. 204; see also Omaha v. Omaha Water Co., 218 U.S. 180, 193, 30 S. Ct. 615, 54 L. Ed. 991; 66 Am. Jur. 2d, References § 30. As early as 1846, this court promulgated the rule that "an authority imposed by law for public purposes, and especially for purposes of a judicial character, may be executed by a majority, if all have been legally notified to act." Middletown v. Berlin, 18 Conn. 189, 197; Congress Bank & Trust Co. v. Brockett, 111 Conn. 490, 492, 150 A. 742. On the other hand, the case of arbitrators chosen by private persons is distinguishable from "the awards of referees and auditors, who derive their power to administer justice, by the act of law." Patterson v. Leavitt, 4 Conn. 50, 53; Dunn v. Flynn, supra, 274-75. In the present case, a matter of public concern was entrusted to a committee whose power to administer justice was derived by law. See the present § 13a-76, 52-434 and 52-434a of the General Statutes; see Florida Hill Road Corporation v. Com missioner of Agriculture, 164 Conn. 360, 321 A.2d 856. The fact that such statutes are silent as to the validity of majority action does not connote a requirement of unanimity; to the contrary, in the absence of a specific statutory direction, the law decrees that a majority may act. Cannon v. Cannon, 111 Conn. 589, 591-92, 151 A. 166. Moreover, "[t]he very fact that in the statute before us an odd number of . . . [referees] is specified suggests that the legislature had in mind the possibility of a disagreement." Dunn v. Flynn, supra, 275. We hold, therefore, that the judgment of a majority of a committee composed of three state referees is not invalid for lack of unanimity. n The plaintiffs attack the committee's jurisdictional authority to consider the question of special benefits in their reassessment. Section 13a-73 (b) of the G-eneral Statutes provides that, upon the taking of a person's land for state highway purposes, the commissioner of transportation shall assess damages and benefits resulting from such taking and shall file the assessment with the clerk of the Superior Court in the county in which the land affected is located. Following such filing, the clerk is required to give notice of such assessment to each person having an interest of record in the affected property. If the property owner affected chooses not to accept the initial assessment of the commissioner ; see § 13a-74; that person may appeal to the Superior Court pursuant to § 13a-76 which authorizes a "reassessment of such damages or sueh benefits" as may have been assessed by the commissioner. In the present case, the defendant commissioner's assessment stated, in pertinent part, that "this assessment of damages" (emphasis added) was filed with the clerk of the Superior Court in the appropriate county as required by statute, and concluded with the following: "Damages are assessed at $243,500.00." The assessment made no reference to the finding of benefits. In accordance with § 13a-76, the plaintiffs took a timely appeal to the Superior Court from the "Assessment of Damages" filed by the defendant requesting "a review of said Assessment and reappraisal of damages fixed therein." We agree with the claim of the plaintiffs in this appeal that, in view of the foregoing, the committee was without authority to assess benefits found to be occasioned by the taking, therefore rendering the judgment invalid. The procedure mandated by § 13a-74 of the General Statutes is to deduct "any benefits which have been assessed" from the amount of damages found to have been due the landowner. Necessarily, "[t]his process requires the ascertainment of two distinct facts, the extent to which the owner is damaged, and the extent to which he is benefitted, by the taking of his land and the putting through of the public improvements. The proceedings for the determination of these facts, are regarded as separate and distinct, and in a sense independent of each other. Newton's Appeal, 84 Conn. 234, 79 Atl. 742." Heublein, Inc. v. Street Commissioners, 109 Conn. 212, 216, 146 A. 20. Only when the commissioner files a separate assessment of damages and benefits, as he did, for instance, in Gabriel v. Cox, 130 Conn. 165, 167, 32 A.2d 649, and Munson v. MacDonald, 113 Conn. 651, 654, 155 A. 910, can it be said that the landowner has been properly apprised and put on notice of the action taken by the state. Moreover, since § 13a-78 provides that the amount of benefits assessed by the commissioner "shall constitute a lien upon the land against which such benefits were assessed from the date such assessment was filed," it is readily apparent that the legislature contemplated that an assessment of benefits, if any, be made specifically by the commissioner in the first instance. In this regard, it is interesting to note that in the Munson case, supra, 653, Chief Justice Maltbie underscored the statutory requirement that the assessment of such damages and benefits "shall be made" by the commissioner. It is clear, as the defendant points out, that in cases where, as here, only a portion of the landowner's property is taken, the usual measure of damages is the difference between the market value of the whole tract with its improvements before the taking and the market value of what remained after the taking. Meriden v. Highway Commissioner, 169 Conn. 655, 659-60, 363 A.2d 1094; Lynch v. West Hartford, 167 Conn. 67, 73, 355 A.2d 42; Connecticut Ry. & Lighting Co. v. Redevelopment Commission, 161 Conn. 234, 239, 287 A.2d 362. The fact that this "before and after" rule of computation may have governed the commissioner's determination of damages in the present ease, however, does not prevent him from separately assessing special benefits as we have indicated is required. See Heublein, Inc. v. Street Commissioners, supra, 215-16. Indeed, the majority's finding in this case specifically apportioned the amount of special benefits which it concluded increased the "after taking" valuation of the plaintiffs' remaining property. Although the separate determination of damages and benefits should lead to the same result as the "before and after" procedure, the defendant's failure, in this case, to follow the statutory requirements so as to inform the plaintiffs and put them on notice that benefits were in fact assessed operated as a limitation on the committee's statutory reassessment authority under % 13a-76 and circumscribed the true nature of the appeal and the scope of the plaintiffs' pleadings in taking their appeal. These circumstances can, of course, be distinguished from a case in which the taking authority's initial assessment includes a determination of both benefits and damages but the court, on appeal, fails to find the amount of benefits and damages by separate determination. See Bissell v. Bethel, 113 Conn. 323, 326-27, 155 A. 232 (394 Rec. & Br. 177-78, April Term, 1931). It is necessary to the validity of the judgment "that the court should have had jurisdiction of the precise question which its judgment assumes to decide, or of the particular remedy or relief which it assumes to grant." New Haven Sand Blast Co. v. Dreisbach, 104 Conn. 322, 329-30, 133 A. 99. In the absence of pleadings upon which a judgment assessing benefits may properly be founded, and in view of the statutory restrictions upon the referees' authority to reassess an award of the commissioner, the judgment rendered in this case cannot stand. Id. There is error, the judgment is set aside and the case is remanded with direction to recommit it for the determination of damages in accordance with this opinion. In this opinion the other judges concurred. Under 1967 Public Acts, No. 772 (b), in condemnation proceedings where the assessment exceeds the sum of $200,000, the court, on its own motion, had the discretion to refer the proceedings to a committee of three referees. The present § 52-434a of the General Statutes provides that, in such eases, the court refer the proceedings to the chief court administrator for referral to a committee of three referees. In view of our disposition of this appeal, we have not attempted to resolve the apparent arithmetical inconsistencies which appear in the majority's finding and judgment. The plaintiffs' motion to open the judgment and motion to vacate the judgment were denied by the full eommittee. Tho statutes in effect at the time of the reference in this ease were, in all relevant respects, identical to those which exist at the present time. See footnote 1, supra. "[General Statutes] Sec. 13a-73. acquisition of real property. . . . (b) CONDEMNATION OF LAND FOR STATE HIGHWAY OR highway maintenance storage area OR garage. The commissioner may take any land he finds necessary for the layout, alteration, extension, widening, change of grade or improvement of any state highway or for a highway maintenance storage area or garage and the owner of such land shall be paid by the state for all damages and the state shall receive from such owner the amount or value of all benefits resulting from such taking, layout, alteration, extension, widening, change of grade or other improvement. . . . The assessment of such damages and of such benefits shall be made by the commissioner and .filed by him with the clerk of the superior court in the county in which the land affected is located, and such clerk shall give notice of such assessment to each person having an interest of record therein by mailing to each a copy of the same, postage prepaid, and, at any time after such assessment has been made by said commissioner, the physical construction of sueh layout, alteration, extension, widening, maintenance storage area or garage, change of grade or other improvement may be made. . . . Upon filing an assessment with the elerk of the superior court, the commissioner shall forthwith sign and file for record with the town elerk of the town wherein sueh real property is located a certificate setting forth the fact of sueh taking, a description of the real property so taken and the names and residences of the owners from whom it was taken. Upon the filing of sueh certificate, title to sueh real property in fee simple shall vest in the state of Connecticut except that, if it is so specified in sueh certificate, a lesser estate, interest or right shall vest in the state." "[General Statutes] See. 13a-76. appeal. Any person claiming to be aggrieved by the assessment of such special damages or such special benefits by the commissioner may, at any time within six months after the same has been so filed, apply to the superior court for the eounty within which sueh land is situated or, if said court is not in session, to any judge thereof for a reassessment of such damages or sueh benefits so far as the same affect sueh appEcant, and said court or such judge, after causing notice of the pendency of sueh appEcation to be given to said commissioner, shall appoint a state referee to make such reassessment of such damages or sueh benefits. Such referee, having given at least ten days' notice to the parties interested of the time and place of hearing, shall hear the appEcant and said commissioner, shall view the land and take such testimony as sueh referee deems material and shall thereupon reassess sueh damages and benefits so far as they affect such appEcant and forthwith report to the court. If the amount of the reassessment of such damages awarded to any such property owner exceeds the amount of the assessment of sueh damages by the commissioner for such land, said court or sueh judge shall award to sueh property owner sueh appraisal fees as said court or sueh judge determines to be reasonable. . . ." The following assessment was filed by the defendant in the present case: "Paul J. Hanson ] 5 5 8 8 Elizabeth G. Hanson j SUPEBIOB COURT J- FAIRFIELD COUNTY | JUNE 10, 1971 ] Pursuant to the provisions of Section 13a-73 (b) and (f) of the 1969 Supplement to the General Statutes the premises hereinafter described are found to be necessary for the layout, alteration, extension, widening, change of grade and improvement of the highway commonly known as the Relocation of Boute U.S. 7, Wilton-Norwalk Boad and the same are hereby taken, and this assessment of damages resulting therefrom is hereby filed with the Clerk of the Superior Court in the County in which said premises are located. Said premises are situated in the Town of Wilton, County of Fair-field and State of Connecticut, on the northerly side of Present Boute 33-Westport Boad and bounded: (Description follows . . . ). Said premises stand on record in the names of Paul J. Hanson and Elizabeth G. Hanson. Damages are assessed at $243,500.00. A. Earl Wood Commissioner of Transportation State of Connecticut George S. Koch Deputy Transportation Commissioner Bureau of Highways Duly authorized. "

The plaintiff's motions of August 15, 1978, for correction of the record and of August 21, 1978, for clarification of the motion to correct are granted by the court as to paragraphs (1) and (2) and denied as to paragraph (3) of the motion for clarification. The defendant's motion to correct the record, dated August 16, 1978, is' denied by the court.

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.

The plaintiff's motion for a review of the trial court's order, dated June 30, 1978, terminating a motion for stay is dismissed by the court. The plaintiff's motion to complete the record is denied by the court without prejudice to the plaintiff's right to refile a motion for review upon obtaining a transcript of the termination hearing or upon submitting a draft finding and obtaining a finding from the trial court. The plaintiff's motion for an extension of time in which to file a draft finding is granted by the court provided the draft finding is filed within 30 days of the receipt of the transcript of the termination hearing.

Parskey, J. The plaintiff was a recipient of Aid to Families with Dependent Children (hereinafter AFDC) funds. The commissioner of welfare, in order to encourage the employment of recipients, allowed the deduction from an AFDC applicant's income of certain work-related expenses in the computation of the amount of assistance available to an eligible recipient. The plaintiff, believing that the meal and transportation allowances of fifty cents per working day and six cents per mile respectively, were inadequate, requested a fair hearing pursuant to General Statutes § 17-2a and 17-2b. The fair hearing officer found against the plaintiff, upholding the amount allowed the plaintiff for lunches and transportation. Thereafter, the plaintiff appealed the fair hearing decision to the Circuit Court. Furthermore, in January, 1975, the plaintiff instituted an action in the United States District Court for the District of Connecticut on behalf of herself and all other working AFDC recipients who had been harmed by the commissioner's work-expense policies. The plaintiff requested injunctive and declaratory relief as well as a retroactive monetary award. Subsequently, settlement negotiations were commenced, and, on March 2,1977, a consent decree was entered in the federal ease. The consent decree, inter alia, granted the plaintiff and the class of persons she represented an increase in transportation expenses effective March 1, 1977, abrogated limits on work-related expenses available to recipients and provided for procedures designed to inform recipients of their right to claim deductions in excess of the defendant's standards. No monetary-relief was awarded for the period prior to March 1, 1977, nor was any reservation expressed in the decree concerning the plaintiff's claim for retroactive monetary benefits. On January 9, 1980, the Superior Court, Kinney, J., ruled that the plaintiff's state claim for relief via the administrative appeal was barred by operation of the doctrine of res judicata and dismissed the appeal. The court noted that the factual claims made by the plaintiff in the state action were substantially identical to those made in the federal action and that the factual basis for the relief sought was the same. The court ruled that the plaintiff could not split her cause of action and obtain relief in two separate proceedings where the first action was brought in a court of limited jurisdiction. From this judgment the plaintiff has appealed. The central issue in this appeal is whether, as a result of a consent decree entered in the United States District Court, the plaintiff is precluded from pursuing in the Superior Court her appeal from the decision of the commissioner of welfare (now commissioner of income maintenance). The trial court held that the plaintiff was so precluded. Consent decrees and orders have attributes both of judicial decrees and of contracts. A valid judgment or decree entered by agreement or consent operates as res judicata to the same extent as a judgment or decree rendered after answer and contest. Annot., 2 A.L.R.2d 514. The principle of res judicata as applied to their decretal aspects may be simply stated. "A final judgment on the merits is conclusive on the parties in an action and their privies as to the cause of action involved. If the same cause of action is again sued on, the judgment is conclusive with respect to any claims relating to the cause of action which were actually made or might have been made." Corey v. Avco-Lycoming Division, 163 Conn. 309, 317, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973). The theory underlying preclusion is merger. The original claim, as a result of being merged in the judgment, is extinguished and rights upon the judgment are substituted for it. Fisher Brown & Co. v. Fielding, 67 Conn. 91, 118-19, 34 A. 714 (1895) (Hamersley, J., dissenting); 1 Restatement (Second), Judgments § 18, comment a. It follows that ordinarily a plaintiff cannot split his cause of action. He cannot sue for part of his claim in one action and then sue for the balance in another action. Viall v. Lionel Mfg. Co., 90 Conn. 694, 699, 98 A. 329 (1916). Nor can he pursue a second action for monetary damages after securing injunctive relief in a suit arising out of the same cause of action. Bayer v. Bloch Real Estate Improvement Co., 246 Ill. App. 416 (1927). This plaintiff, however, claims an exception. It is her contention that preclusion assumes that the court in the first action had jurisdiction to afford the plaintiff all remedies suitable to the ease. If such jurisdiction is lacking, she argues, it is unfair to preclude a plaintiff from presenting in a second action those phases of the claim which she was disabled from presenting in the first. International Railways of Central America v. United Fruit Co., 373 F.2d 408, 417-19 (2d Cir.), cert. denied, 387 U.S. 921, 87 S. Ct. 2031, 18 L. Ed. 2d 975 (1967); Rios v. Marshall, 530 F. Sup. 351 (S.D.N.Y. 1981); 1 Restatement (Second), Judgments §26, comment c. In this case the plaintiff brought suit in the federal court seeking declaratory and injunctive relief. She also claimed retroactive monetary relief. Under the eleventh amendment to the constitution of the United States a state may not, without its consent, be sued in a federal court for money damages. Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S. Ct. 1347, 39 L. Ed. 2d 662, reh. denied, 416 U.S. 1000, 94 S. Ct. 2414, 40 L. Ed. 2d 777 (1974). This constitutional bar applies whether suit is brought directly against the state or by an action against state officials but in which the state is the real, substantial party in interest. Id., 663; Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S. Ct. 347, 89 L. Ed. 389 (1945). Thus, irrespective of the plaintiff's claims for relief, the district court was powerless to award her any amount of monetary relief. It is the plaintiff's further claim that since the preclusive effects of res judicata and collateral estoppel depend upon the existence of a valid, final judgment on the merits by a court of competent jurisdiction; Slattery v. Maykut, 176 Conn. 147, 157, 405 A.2d 76 (1978); Corey v. Avco-Lycoming Division, supra, 317; and since she was barred from pursuing all her claims for relief in the federal court because that court lacked jurisdiction to afford her such relief, she should not be barred from pursuing her additional claim for monetary relief in the state court. While the plaintiff's contention is interesting, we nevertheless agree with the ultimate result reached by the trial court but we do so by a different route which does not require us to decide whether the federal judgment qua judgment operates as res judicata or as a collateral estoppel to preclude further state proceedings. A consent decree, although enforceable like any other judicial decree, is not a judicial determination of any litigated right. Bryan v. Reynolds, 143 Conn. 456, 460, 123 A.2d 192 (1956). "It may be defined as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction. . . . The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement." Id. Because a consent decree represents a settlement of the controversy by the parties thereto it is usually presumed that the parties intended to settle all aspects of the controversy, including all issues raised by the papers comprising the record. Herring v. Queen City Coach Co., 234 N.C. 51, 65 S.E.2d 505 (1951); James, "Consent Judgments as Collateral Estoppel," 108 Penn. L. Rev. 173 (1959); note, "The Consent Judgment as an Instrument of Compromise and Settlement," 72 Harv. L. Rev. 1314, 1319 (1959). In this case, for example, the plaintiff claimed retroactive monetary relief in the federal suit. The fact that the federal court may have lacked jurisdiction to award such relief did not prevent the parties from agreeing to settle all their differences on the basis of the consent decree. McCook v. Beck, 138 Ga. App. 351, 352, 226 S.E.2d 72 (1976). If the federal decree was intended by the parties to dispose only of those matters within the competence of the federal court rather than the entire controversy, then extrinsic evidence conld have been offered to show the true scope of the agreement. Boettcher Oil & Gas Co. v. Westmoland, 189 Okla. 110, 113 P.2d 824 (1941). In the absence of such evidence the trial court was justified in concluding that it was the intention of the parties to resolve the entire controversy by the entry of the consent decree. It is apparent from the record, including the court's judgment, that the trial court resolved the factual issue underlying the res judicata defense in favor of the defendant. Not only does this conclusion stand unchallenged, but also we may assume from the failure of the plaintiff to file a transcript that no countervailing extrinsic evidence was offered. See Coveney v. Nicoletti, 168 Conn. 184, 190, 362 A.2d 937 (1975). There is no error. In this opinion the other judges concurred. On December 31, 1974, the Circuit Court was merged into the Court of Common Pleas. Public Acts 1974, No. 74-183, § 1. On July 1, 1978, the jurisdiction of the Court of Common Pleas was transferred to the Superior Court. General Statutes § 51-164s.

Sponzo, J. In this appeal the unchallenged facts are summarized as follows: In 1980 the plaintiffs, P. X. Restaurant, Inc., as backer and Anthony L. Martorelli as permittee applied to the department of liquor control for permission to remove their restaurant business having a restaurant liquor permit to another location. The plaintiffs sought permission to move their business from 422 Windsor Avenue, Windsor, where it had been operated for more than twenty years to a location at 425 Windsor Avenue, directly across the street. After a hearing before the liquor control commission, the department granted this application pursuant to the provisions of General Statutes § 30-52. The commission found that the town of Windsor had acquired the premises located at 422 Windsor Avenue in 1975 through negotiations but under the threat of the exercise of the power of eminent domain. The commission also found that the new location was in a business zone and within a radius of 750 feet from the present location. Although the town of Windsor and the intervening defendants, Mario Laiuppa and Rejeanne Laiuppa, appealed from this action of the department of liquor control, the town of Windsor withdrew its appeal and the intervening defendants' appeal was dismissed because of a lack of aggrievement. Shortly after the approval of their application to remove, the plaintiffs made application to the defendant, John H. Pratt, acting building inspector of Windsor, for a building permit to make alterations to the premises located at 425 Windsor Avenue. Pratt denied this application on the ground that there were numerous violations of the Windsor zoning ordinances and regulations. The plaintiffs concede that the size of the proposed building at 425 Windsor Avenue, the number of available spaces for parking cars and the lack of a buffer zone constitute violations of the zoning ordinances and regulations. On July 22, 1980, the plaintiffs filed an action in the Superior Court in which they sought a writ of mandamus to compel Pratt to issue a building permit. At the same time there was pending an action for eviction in the Housing Session of the Superior Court in Hartford wherein the town of Windsor had obtained a stipulated judgment against the plaintiffs, which judgment provided for a stay of execution until July 31, 1980. The plaintiffs then filed an action in the Housing Session of the Superior Court in which they sought a restraining order and a permanent injunction enjoining the town of Windsor from seeking execution of the summary process judgment. On July 29, 1980, the court granted a temporary injunction. Thereafter, on motion by the plaintiffs, the action for mandamus and the action for injunctive relief were consolidated for the purpose of trial. The plaintiffs have appealed from the judgments rendered against them in both actions. They assign three claims of error, namely: (1) that the court exceeded the scope of permissive inquiry by interpreting General Statutes § 30-52 since the depart ment of liquor control had decided the issue and the appellate process had been exhausted; (2) that the court was incorrect in its interpretation of § 30-52; and (3) that the court erred in permitting Mario and Rejeanne Laiuppa to be defendants in the mandamus action. In the interest of brevity and clarity we shall consider the first two claims of error together because the resolution of the statutory construction issue will determine the disposition of the issue of estoppel. In support of their claim that the court erred in its interpretation of General Statutes § 30-52 the plaintiffs rely on the difference in wording of two clauses of § 30-52. The "hardship" or "eviction" provision reads as follows: "Notwithstanding the existence of any local zoning ordinance or general statute prohibiting or affecting the establishment or removal to a new location of an alcoholic liquor use within certain specified distances of other alcoholic liquor uses of the same or different kinds, the department of liquor control, in cases of hardship and in cases caused by reason of the commencement of an eviction action against such permittee from the particular building or place in such town specified in such permit, may endorse upon such permit permission to the per-mittee to remove from one building or place in any zone to another building or place in a proper business or industrial zone, and the permittee shall thereupon be authorized to remove to such new location with such permit. The applicant for such permission shall specify the building or place to which he wishes to remove, and such new location shall comply with all other provisions of the local zoning ordinances or general statutes except as hereinbefore provided; and such permittee shall be allowed to move such permit premises only within a radius of seven hundred fifty feet of the old permit premises." (Emphasis added.) The plaintiffs concede that, if this portion of the statute were applicable, they would not be entitled to a building permit from Pratt because the local zoning ordinances and regulations would prevail. These plaintiffs contend, however, that they are entitled to the building permit because of the "eminent domain" provision of this same statute, which reads as follows: "If the site of any permit premises is taken or threatened to be taken in the exercise of the power of eminent domain, the department may authorize the relocation of such permit premises to a new location, any local ordinance or general statute notwithstanding, provided such new location is zoned for business use and is within a radius of seven hundred fifty feet from the point, on the boundary of the overall site of the proposed taking, nearest to the site of such permit premises." (Emphasis added.) It is conceded by the plaintiffs that the department of liquor control granted their application to relocate their liquor permit pursuant to § 30-52 of the General Statutes. In order to be entitled to a writ of mandamus the following essential conditions must exist: "(1) that the party against whom the writ is sought must be under an obligation imposed by law to perform some such duty, that is, a duty in respect to the performance of which he may not exercise any discretion; (2) that the party applying for the writ has a clear legal right to have the duty performed; and (3) that there is no other sufficient remedy." Bassett v. Atwater, 65 Conn. 355, 360, 32 A. 937 (1895); Sterner v. Sauga-tuck Harbor Yacht Club, Inc., 188 Conn. 531, 534, 450 A.2d 369 (1982). In determining whether the essential conditions exist, we must examine § 30-52 elosely. If the words of a statute are clear, the duty of a reviewing court is to apply the legislature's directive since "where the wording is plain, courts will not speculate as to any supposed intention because the question before a court then is not what the legislature actually intended but what intention it expressed by the words that it used." Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980); Verrastro v. Sivertsen, 188 Conn. 213, 220, 448 A.2d 1344 (1982). The meaning of the "hardship" provision that the "new location shall comply with all other provisions of the local zoning ordinances or general statutes" and the "eminent domain" provision that "any local ordinance or general statute notwithstanding" is ambiguous. The intent of the eminent domain provision is not immediately apparent from its language. A review of the legislative history of the statute sheds no light. Although the word "any" may be all inclusive, its meaning in the phrase "any local ordinance or general statute notwithstanding" is restricted by the context and subject matter of the statute. Donohue v. Zoning Board of Appeals, 155 Conn. 550, 556, 235 A.2d 643 (1967). Under similar circumstances we have considered the entire paragraph in which the ambiguous words appear, the mischief it was designed to remedy and the policy underlying it to be more significant in determining the legislative intent expressed by the words than exclusive reli- anee on a dictionary definition. LaProvidenza v. State Employees' Retirement Commission, 178 Conn. 23, 28, 420 A.2d 905 (1979). "Where there is ambiguity in the wording of a statute, the title of the legislation is an aid to statutory construction." Algonquin Gas Transmission Co. v. Zoning Board of Appeals, 162 Conn. 50, 55, 291 A.2d 204 (1971). The heading of §30-52, "Permit to specify location and revocability. Removal to another location," speaks of permits and removal but only in terms of location. All of the statutes in chapter 545, in which authority is given to the department of liquor control to issue permits, limit this power to a consideration of the location or suitability of applicants. Harm from the sale of liquor, as it relates to place or person, is a matter of special knowledge acquired by the commission appointed for that purpose. Biz v. Liquor Control Commission, 133 Conn. 556, 560, 53 A.2d 655 (1947). It is reasonable, therefore, to construe the eminent domain provision as the exclusive law concerning the relation of location and liquor sale because such a construction is consistent with the scope of the Liquor Control Act and within the commission's expertise. It is also reasonable, however, to imply that liquor premises are subject to local zoning ordinances which involve matters other than location. Once a liquor location is approved there may be additional health, safety and welfare factors unrelated to the fact that liquor will be sold at that location. These are zoning matters of local concern and thus are within the expertise of local authorities. Goldberg v. Zoning Commission, 173 Conn. 23, 27, 376 A.2d 385 (1977). Where the legislature has delegated to the local government the power to deal with a particular field of regulation, i.e., zoning, the fact that a statute regulates the same subject in a limited way does not by that very fact deprive the local government of the power to act in a more comprehensive, but not inconsistent manner. Connecticut Theatrical Corporation v. New Britain, 147 Conn. 546, 552, 163 A.2d 548 (1960). The "hardship" and "eminent domain" provisions are readily distinguishable. The "hardship" provision is solely concerned with distances between liquor outlets whereas the "eminent domain" clause is broader and concerned with distances between the liquor permit premises and other premises such as schools, churches, and institutions which are not involved with the sale of alcoholic beverages. The interpretation of the trial court was, therefore, correct. Pratt was under no obligation to issue a building permit and the plaintiffs had no clear right to a building permit. Pratt was bound by the zoning ordinances to deny the building permit inasmuch as there were violations existing on the new premises. In order to invoke the doctrine of estoppel, which is the first claim of error, the plaintiffs must establish that an issue has been litigated. "Collateral estoppel is that aspect of the doctrine of res judicata which serves to estop the relitigation by parties and their privies of any right, fact or legal matter which is put in issue and has been once determined by a valid and final judgment of a court of competent jurisdiction." State v. Wilson, 180 Conn. 481, 485, 429 A.2d 931 (1980). The party or his privy against whom collateral estoppel is asserted, therefore, must have been given a full and fair opportunity to litigate in a prior proceeding the issue sought to be precluded in the subsequent proceeding. Brockett v. Jensen, 154 Conn. 328, 338, 225 A.2d 190 (1966). The issue before the commission was limited to location. The issues relating to the number of parking spaces, the size of the building and the buffer zone were not considered by the department of liquor control. The plaintiffs cannot prevail on this claim. The plaintiffs have failed to brief the final issue and that claim of error is considered abandoned. Katsetos v. Nolan, 170 Conn. 637, 641, 368 A.2d 172 (1976). There is no error. In this opinion the other judges concurred. "[General Statutes] Sec. 30-52. permit to specify location AND REVOCABILITY. REMOVAL TO ANOTHER LOCATION. Every permit for the sale of alcoholic liquor shall specify the town and the particular building or place in such town in which such liquor is to be sold, and shall not authorize any sale in any other place or building. Such permit shall also be made revocable in terms for any violation of any of the provisions of this chapter. Notwithstanding the existence of any local zoning ordinance or general statute prohibiting or affecting the establishment or removal to a new location of an alcoholic liquor use within certain specified distances of other alcoholic liquor uses of the same or different kinds, the department of liquor control, in eases of hardship and in cases caused by reason of tho commencement of an eviction action against such permittee from the particular building or place in such town specified in such permit, may endorse upon such permit permission to the permittee to remove from one building or place in any zone to another building or place in a proper business or industrial zone, and the per-mittee shall thereupon be authorized to remove to such new location with such permit. The applicant for such permission shall specify the building or place to which he wishes to remove, and such new location shall comply with all other provisions of the local zoning ordinances or general statutes except as hereinbefore provided; and such permittee shall be allowed to move such permit premises only within a radius of seven hundred fifty feet of the old permit premises. The removal of the permit premises from the particular building or place specified in the permit without the approval of the department shall be grounds for the suspension or revocation of the permit. In such cases an appeal from an order refusing permission to remove may be taken in accordance with the provisions of section 30-60. If the site of any permit premises is taken or threatened to be taken in the exercise of the power of eminent domain, the department may authorize the relocation of such permit premises to a new location, any local ordinance or general statute notwithstanding, provided such new location is zoned for business use and is within a radius of seven hundred fifty feet from the point, on the boundary of tho overall site of the proposed taking, nearest to the site of such permit premises."

Per Curiam. This appeal by the defendant administrator of the estate of Irvin P. Hyatt challenges the judgment below that, pursuant to General Statutes § 27-108, the plaintiff recover of the defendant .for the cost of "medical care and treatment, food and clothing" furnished to the decedent while he resided at the Veterans' Home and Hospital in Rocky Hill between October -1957 and April 1976. The claims here are substantially identical to those made by the defendant in State v. Egan, 169 Conn. 78, 83-84, 362 A.2d 516 (1975), which is dispositive of this appeal. There is no error. The defendant's special defense of the statute of limitations was properly rejected by the trial court because the state's claim was timely pursuant to § 17-298 of the General Statutes. Furthermore, although the defendant also argues in his brief that the per diem charges assessed against the estate exceeded the permissible statutory limits, that claim has not been properly presented for our review.

The defendant's petition for certification for appeal from the Appellate Court, 16 Conn. App. 245, is granted, limited to the following issue: "Did the Appellate Court err in affirming the defendant's conviction and holding that the wiretap panel's failure to make a written determination of probable cause, pursuant to General Statutes § 54-41d (7) and 51-41e, that a special need existed to intercept wire communications over a public telephone was not reversible error?"

The defendant's motions for a review of the trial court's denial of his motion for reduction of bail are dismissed by the court in the absence of a finding.

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.

The petition by the defendants Joseph Laskowski et al. for certification for appeal from the judicial district of Ansonia-Milford is denied by the court.

Cotter, C. J. This case was tried together with the case of Devitt v. Manulik, 176 Conn. 657, 410 A.2d 465. The plaintiffs, brothers of the defendant, brought the present action seeking an accounting and an order decreeing that the defendant sister holds certain funds contained in a savings bank account as trustee for the benefit of all three parties. From a judgment rendered in favor of the defendant, the plaintiffs have taken this appeal. Martha Manulik, mother of the parties, who emigrated to this country from Russia and could neither read nor write, opened a savings bank account in the Connecticut Savings Bank of New Haven in 1930. On January 15, 1963, the account was changed to provide that the funds contained therein were held by Martha Manulik as trustee for the defendant. When this trustee account was established, Martha Manulik signed a statement giving the name and address of the defendant as beneficiary by causing her mark and fingerprints to be placed on the signature card statement. From January 15, 1963, until the death of the parties' father in January, 1969, Martha retained possession of the passbook. From January, 1969, until Martha's death, the plaintiff John C. Manulik, Jr., had possession of the passbook, and, upon Martha's death, he gave it to the defendant. It is undisputed that the funds originally deposited were those of Martha Manulik only and not the funds of any party to this action, and that none of the parties used the passbook funds prior to the death of Martha. The plaintiffs contend that it was the intention of Martha Manulik and of the parties that the money in question would be equally divided among them upon their mother's death. On that basis, the plaintiffs argue that the defendant held those funds in trust for their benefit to be later apportioned in accordance with such an alleged oral agreement. The trial court concluded, however, that the plaintiffs failed to prove by a preponderance of the evidence that a constructive trust of the funds in the savings account was created in their favor; and that they did not establish that § 36-110 of the General Statutes was not applicable on the issue of ownership of the trustee account in question. We agree with the conclusion of the trial court that the plaintiffs' claims cannot be sustained in view of the application of the provisions of General Statutes § 36-110. Prior to 1961, the predecessor to § 36-110 (1) simply provided that the creation of trustee bank accounts was authorized when the deposit was accompanied by a statement signed by the depositor designating the beneficiary and setting forth to whom the principal and interest of sueh deposit belonged; and that the banldng institution would be fully protected in making payment of sueh funds to the named beneficiary upon the death of the trustee. General Statutes, Rev. 1949, § 5829. In Fasano v. Meliso, 146 Conn. 496, 152 A.2d 512, however, this court declared invalid savings account trusts which were established with the sole intention of passing ownership of the funds to the beneficiary only upon the trustee's death on the ground that the attempted trusts failed as testamentary dispositions of property in a manner forbidden by the Statute of Wills. In response to criticism of the effect of our decision in Fasano; see 34 Conn. B.J. 67; the 1961 General Assembly enacted Public Act No. 306 in order to overrule the consequence of that decision and to give full effect to a savings account trust deposit despite the requirements of the Statute of Wills. 36 Conn. B.J. 266. The present § 36-110 (1) contains essentially the same language that originally appeared in Public Acts 1961, No. 306. Unless the depositor's signed statement, which accompanies the deposit in trust, specifies to the contrary, § 36-110 (1) creates a conclusive presumption that the depositor intends to create a trust of the funds in such account on the following terms: "1. The depositor during his life may withdraw, or authorize charges against, the moneys to the credit of the trust; 2. if the depositor survives the named beneficiary, the named beneficiary's death shall terminate the trust and title to the moneys . . . shall vest in the depositor free and clear of the trust; [and] 3. if the named beneficiary survives the depositor, the depositor's death shall terminate the trust and the moneys . . . shall vest in the named beneficiary free and clear of the trust." In addition, subsection (b) of the statute provides that the effect of the foregoing presumptions "shall not be denied, abridged or in any way affected because such signed statement . . . fails to comply with . . . the laws of this state prescribing the requirements to effect a valid testamentary disposition of property or because of any absence of delivery or compliance with other requirements to effeet a valid gift or transfer in trust." The plaintiffs argue that § 36-110 was enacted solely for the protection of the banks and, therefore, has no application to the present case. We disagree with the plaintiffs' claim that, under the circumstances of this case, the ownership of the funds in question must be determined by ascertaining the intention of Martha Manulik at the time the account was created in accordance with common-law prerequisites for the establishment of a valid trust. General Statutes §36-110, as amended, attaches specific consequences to the acts of the depositor-trustee when compliance with the statute is satisfied. It is unmistakable that the statute was based upon the premise that the creation and maintenance of such an account itself manifested the depositor-trustee's intent and that this conclusively presumed intent should be accorded full effect through the instrumentality of a "statutory trust" in spite of the fact that the transaction fails to satisfy the requirements of the Statute of Wills or of the common-law concepts of gifts or transfers in trusts. Cf. Howard Savings Institution v. Kielb, 38 N.J. 186, 202,183 A.2d 401 (construing a statute virtually identical with § 36-110). In sum, § 36-110 gives effeet to the intention of the depositor to make a "poor man's will," but at the same time to retain the sole right to the moneys during his lifetime. See Hearings, Joint Standing Committee on Banks, 1961 Session, pp. 129-132. By virtue of the statute's conclusive presumption regarding the depositor-trustee's intent, therefore, the defendant in the present case, as beneficiary, acquired all rights to the funds contained in the account upon the death of her mother. We need not discuss the beneficiary's right to the account upon the prior death of the depositor-trustee, however, where an attack is made upon classic equitable grounds sucb as fraud, duress, undue influence and mistake; Howard Savings Institution v. Kielb, supra; since it does not appear that the plaintiffs have clearly asserted such claims in the present action. Accordingly, the plaintiffs' assertion that the defendant is without a rightful claim to the funds in question, and that a constructive trust should therefore be invoked, is without merit. There is no error. In this opinion the other judges concurred. "[General Statutes] Sec. 36-110. deposits intrust. (1) (a) No savings bank, state bank and trust company or national banking association shall accept any deposit made by one person in trust for another unless the same is accompanied by a statement signed by the depositor giving the name and residence of the beneficiary. Such statement may also specify tke terms of the trust thereby created. Unless sueh statement specifies to the contrary, it shall be conclusively presumed that the depositor intends to create a trust of the moneys at any time standing to the eredit of such account upon the following terms: 1. The depositor during his life may withdraw, or authorize charges against, the moneys to the credit of the trust; 2. if the depositor survives the named beneficiary, the named beneficiary's death shall terminate the trust and title to the moneys to the credit of the trust shall vest in the depositor free and clear of the trust; 3. if the named beneficiary survives the depositor, the depositor's death shall terminate the trust and the moneys to the eredit of the trust shall vest in the named beneficiary free and clear of the trust, (b) Any savings bank, state bank and trust company or national banldng association shall be fully protected in making payment of the moneys to the credit of sueh account in accordance with the terms of sueh signed statement or, in the event sueh statement does not specify to the contrary, in accordance with sueh of the foregoing presumptions as may be applicable, and the title of any person to the moneys to the eredit of sueh account and the effect of sueh signed statement with respect thereto or, in the event such statement does not specify to the contrary, the effect of sueh of the foregoing presumptions shall not be denied, abridged or in any way affected because such signed statement was not executed in accordance with, or otherwise fails to comply with, the laws of this state prescribing the requirements to effeet a valid testamentary disposition of property or because of any absence of delivery or compliance with other requirements to effect a valid gift or transfer in trust, (c) The provisions of this subsection shall not apply to the deposits accompanied by a statement of the .type described in subsection (2) hereof. . . ."

It appearing that the defendant in the above-entitled case has failed to prosecute its appeal from the Superior Court in Hartford County with proper diligence, it is, under Practice Book § 696, ordered by the Supreme Court, suo motu, that the appeal be and hereby is dismissed unless the defendant files its brief on or before June 4, 1975.

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

Parskey, J. This appeal concerns a request by the Hospital of St. Raphael, a general teaching hospital located in New Haven, to purchase a computerized tomographic total body scanner. Because the scanner's cost exceeded $100,000, approval of this request by the commission on hospitals and health care (commission) was required by General Statutes § 19-73m. The commission denied the request, citing both a present excess capacity for computerized tomographic (CT) scanning in the region and the duplication of services which would ensue if the proposed project were approved. See General Statutes § 19-73k. The hospital appealed this decision to the Superior Court, which reversed, holding that the commission's decision was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; see General Statutes § 4-183g (5); because no workable CT scanner owned by an institution under the commission's control was available for use by the New Haven community. We granted the commission's petition for certification and we reverse. A CT scanner is a diagnostic device which combines x-ray equipment with a computer and a television monitor to produce images of cross sections of the human body. In documenting its need for the scanner, the hospital contended before the commission that approximately 2000 patients per year potentially could benefit from receiving a CT scan at St. Raphael's. Other evidence, however, indicated that fewer than 100 patients were actually transferred to another facility to receive scans. Thirty-five patients could not- be moved due to acute head trauma. The balance of the hospital's projected yearly use of the scanner was to be the result of scans performed on patients with intracranial lesions, lymphoma, jaundice and abdominal masses and CT scans performed as an alternative in some cases in which isotopic brain scans are currently performed. In addition to this evidence of need, the commission also heard evidence of the present scanning capacity provided by CT scanners in other facilities in the New Haven area. Yale-New Haven Hospital presently has two CT scanners. One is not functional except for occasional emergency use, although Yale-New Haven is planning to submit a proposal to update this scanner. The other scanner is not owned by Yale-New Haven, but is presently on loan from the manufacturer primarily for research purposes. Because this scanner is the only one at Yale-New Haven Hospital in good working condition, it is presently being used clinically. A third CT scanner in the region is operated by a private group of radiological physicians, Temple Radiology Group. This scanner is currently operating at approximately one-third of its capacity. It could be used for over 2000 additional scans per year, although its maximum utilization is inhibited because not every health insurance carrier reimburses patients for scans performed at this facility. On the basis of this evidence concerning regional CT scanning capacity, the commission denied St. Raphael's request for the purchase of a CT scanner. In reversing the commission's decision, the court below focused primarily on the fact that the use of the scanner operated by the private radiological group was outside the commission's jurisdiction. Because the commission could not regulate the extent of the availability of this scanner, the court disregarded it for purposes of ascertaining regional capacity. The court similarly disregarded both scanners at Yale-New Haven, one because it was not working and the other because Yale-New Haven did not own it. Concluding that no workable scanner was owned by an institution under the control of the commission, the court held that the commission's decision denying the St. Raphael request was clearly erroneous. The commission is charged by law with the responsibility for approving capital expenditures of $100,000 or more by health care facilities or institutions. General Statutes § 19-73m. Hospitals are specifically included within the meaning of health care facilities or institutions. General Statutes § 19-73b. In reviewing a request for such a capital expenditure, the commission is directed to "consider such request in relation to the community or regional need for such capital program, the possible effect on the operating costs of the health care facility or institution, the recommendations of the Health Systems Agency regarding such proposal, and such other relevant factors as the commission deems necessary." General Statutes § 19-73m. In addition, the commission is directed to consider the effectiveness of the facility's delivery of health care services, the quality of available health care and the duplication of service by institutions and facilities in the area served. General Statutes § 19-73k. In its consideration of the foregoing fac tors in this case the commission concluded that the region had excess capacity and the proposed services would duplicate services provided by the health care facilities which in the aggregate are operating at less than full capacity. In reviewing the action of an administrative agency the trial court must accept the evidence presented to such agency uncoated by any judicial gloss. "Conclusions reached by an administrative body must be upheld by the court if they are supported by the evidence that was before the administrative body. Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 563, 345 A.2d 520. The credibility of witnesses and the determination of issues of fact are matters within the province of the administrative agency. Jaffe v. State Department of Health, 135 Conn. 339, 343, 64 A.2d 330. It is not the function of the court to retry the case. The question is not whether the trial court would have reached the same conclusion but whether the record before the commission supports the action taken. Conley v. Board of Education, 143 Conn. 488, 492, 123 A.2d 747." Williams v. Liquor Control Commission, 175 Conn. 409, 414, 399 A.2d 834 (1978). The trial court recognized that in reviewing the commission's action it was precluded from substituting its judgment for that of the commission as to the weight of the evidence on questions of fact. General Statutes § 4-183 (g). Rather than challenge directly the commission's factual conclusion of excess regional scanning capacity, the trial court reevaluated the evidence on the basis of its interpretation of the pertinent statutes. Specifically, the trial court took the view that "duplication of service by institutions and facilities in the area served"; General Statutes § 19-73k (a); must be construed to mean duplication of services provided by facilities over which the commission had regulatory power to control access and availability. The court also held that any duplication which resulted from equipment not owned by such a facility could not be taken into account under § 19-73k. In arriving at its conclusion of excess regional scanner capacity, the commission included the CT scanner used by Temple Radiology Group, an organization of private physicians, and the two scanners at Yale-New Haven Hospital. The court concluded that the Temple scanner could not be considered because that group was not subject to regulation by the commission and that the two scanners at Yale-New Haven could not be considered because one was not functional except on an emergency basis and the other was not owned by the hospital. The second Yale-New Haven scanner was on loan principally for research purposes, but was in fact being utilized for clinical purposes. There is nothing in the statutory scheme which limits the commission to a consideration of only such units which are owned by regulated health care facilities. In arriving at its finding of regional need, the commission may consider all units available for medical use by the general public whether operated by regulated or by nonregulated health care facilities. If a unit is on loan for a limited purpose such as research but is in fact also used for clinical purposes, it is for the commission to weigh this factor in its deliberations and to determine to what extent, if any, it would discount the availability of such unit because of the purported limited nature of its use. The commission could hardly ignore the fact that the Temple scanner was operating at one-third capacity and that it was available for use by a substantial number of ambulatory patients of St. Raphael's. We are not suggesting that, despite the availability of scanners at Temple and Yale-New Haven, the commission would not have been justified in approving the plaintiff's application. The record discloses several factors which could impede the use of the scanners at either place. The Temple scanner, for example, was available for limited use on an outpatient basis. It was not available during evenings, nights and weekends, and would not be available for seriously ill patients who could not be moved or for emergency cases. Moreover, Temple required a nurse to accompany every patient who was transported there for a scan. The use of the Yale-New Haven scanner presented the problem of delay, nine days for inpatients and about three weeks for outpatients. Delays in scans would increase the hospital stays for inpatients. Prompt diagnosis and appropriate therapy provide the greatest assurance of reduced morbidity and mortality for neurosurgical patients. In balancing these factors against the potential duplication of services, the commission could well have concluded that the improvement in the quality of care at St. Raphael's resulting from the availability of its own scanner outweighed whatever savings might accrue from avoiding a duplication of services, especially in light of the negative factors involved in compelling patients at St. Raphael's to avail themselves of scanners at Temple and Yale- New Haven. But that conclusion was for the commission to reach. Its contrary conclusion is not subject to judicial reversal on the facts of this case. The hospital contended before the trial court that the commission's denial of the scanner application resulted in St. Raphael's being denied the equal protection of the laws. See U.S. Const., amend XIV. In renewing that argument on appeal, the hospital does not directly attack the pertinent statutes claiming that they are facially invalid. Instead, the hospital maintains that the statute has been unequally applied in the sense that the commission denied the application in the present case even though it had approved other scanner applications submitted by hospitals with qualifications and needs allegedly equal to or less than those of St. Raphael's. This argument misses the mark because no evidence of purposeful discrimination was ever presented in this case. See Snowden v. Hughes, 321 U.S. 1, 8, 64 S. Ct. 397, 88 L. Ed. 497 (1944); Briscoe v. Kusper, 435 F.2d 1046, 1052 (7th Cir. 1970). An equal protection claim based on unequal application of the law does not arise from conclusory allegations regarding past decisions, but rather must be established by competent evidence. The bare fact that certain scanner applications in the past were approved, while the present application was denied, does not approach the required evidentiary burden imposed on a party claiming discriminatory enforcement. The final claim raised by the hospital before the lower court and presented to us as an alternative ground for upholding the result reached below concerns certain guidelines which the plaintiff maintains formed the basis of the commission's action in denying the application. It is clear that informal guidelines, promulgated outside the rulemaking framework of the Uniform Administrative Procedure Act; General Statutes §4-166 through 4-189; may not be applied as substantive rules. Salmon Brook Convalescent Home v. Commission on Hospitals & Health Care, 177 Conn. 356, 368, 417 A.2d 358 (1979). J.t is equally clear, however, that the commission in the present case did not apply the informal guidelines as regulations in considering the plaintiff's application. The only guidelines that the plaintiff did not meet concerned the number of intracranial operations being performed. The guideline was set at fifty per year; thirty-five per year were performed at St. Raphael's. This shortfall, however, played no role in the commission's ultimate decision on the application. That decision was plainly grounded on regional excess scanning capacity and the duplication of services that would result from another scanner being added to the New Haven area. There is error, the judgment is vacated and the case is remanded with direction to dismiss the plaintiff's appeal. In this opinion the other judges concurred. Wo reject the commission's contention that the hospital was not aggrieved by the commission's decision; see General Statutes § 19-73p; and that, as a result, the trial court did not have jurisdiction over the case. The court found that funds had been earmarked for the purchase of a scanner. It further found that funds had already been expended and space set aside by St. Raphael's to accommodate the scanner. These subordinate facts amply support the court's conclusion that the hospital was aggrieved by the denial of its application.

Peters, J. This is an appeal by the commission on human rights and opportunities from a judgment of the Court of Common Pleas which set aside a hearing examiner's decision that the plaintiff had unlawfully discriminated against the complainant, a black person, by refusing to award him back pay and benefits upon reinstating him after an involuntary termination. The commission claims that the court erred in misconceiving the issue before the hearing examiner and in substituting its judgment for that of the hearing examiner. The following facts were found by the hearing examiner and accepted by the trial court: The plaintiff Hartford board of education terminated the employment of the complainant, a black custodian at one of the city's high schools, in October of 1974, on the grounds of his verbal abuse of his coworkers and his unsatisfactory performance of his assigned tasks. The custodian successfully appealed his termination to the board, and returned to work in May of 1975, seven months after his dismissal. He was, however, granted neither back pay nor benefits for the time that he was not permitted to work. At approximately the same time, a white school teacher at another of the city's high schools was terminated by the plaintiff for using physical force on a student. He too successfully appealed his termination and was reinstated to his job; but in his case restoration to work was accompanied by the plaintiff's payment of all except one week's back pay and benefits. Restoration of his benefits was deemed appropriate because of his otherwise exemplary record. The plaintiff has no written policy regarding suspension without pay of its noninstruetional employees, except as provided in the collective bargaining agreement with the appropriate union. That agreement provides for suspension without pay and for discharge without prior warnings only in the event of serious misconduct, which the agreement itself does not define. The practice of the plaintiff had been not to suspend any employee without pay for periods longer than one or two weeks except in the rarest instances, and never for periods of six or seven months. On the basis of these facts, the hearing examiner concluded that the complainant had established a prima facie case of race discrimination in violation of the Oonnectieut Pair Employment Practices Act, General Statutes §31-126 (a), because of the difference in treatment afforded to the black custodian and the white teacher with regard to restoration of back pay upon reinstatement. He also concluded that the plaintiff had failed to meet its burden of demonstrating that the grossly disparate treatment was motivated not by racé but by a legitimate nondiscriminatory consideration, although he conceded that there was no evidence to support either a deliberately discriminatory purpose or a lack of good faith on the part of the plaintiff. He therefore ordered the plaintiff to pay the complainant back pay and benefits for the time that he was not on the plaintiff's payroll, reduced by an amount equal to two weeks' compensation. The plaintiff appealed this administrative decision to the trial court, claiming that the decision of the hearing examiner was arbitrary and erroneous because without basis in fact. It is important to be precise about what issue was presented by the complaint before the hearing examiner. The issue was not whether the complainant should have been terminated but rather whether, having been reinstated, he should have lost all back pay and benefits. The trial court, nonetheless, concluded that there was no basis for the commission's conclusion of discrimination because the original decision to terminate the complainant was justified, and would have been implemented but for a provision of the collective bargaining agreement requiring a progressive order of disciplinary action prior to termination. That earlier decision had not been reexamined before the hearing examiner and therefore was inappropriately considered on appeal. The gravamen of the complaint before the hearing examiner was disparity of treatment on account of membership in a class protected by the Fair Employment Practices Act. The hearing examiner recognized that unequal treatment of persons similarly situated warrants legal intervention only when prohibited by statute. He observed also, as this court has observed, that overt evidence of discrimination is likely to be elusive. "Racial discrimination is an intangible and for the most part can be established only through inference. . In this type of proceeding, therefore, greater latitude is accorded the tribunal to draw inferences from words and deeds than in cases where overt acts need be established." Reliance Ins. Co. v. Commission on Human Rights & Opportunities, 172 Conn. 485, 488-89, 374 A.2d 1104 (1977). The complainant established a prima facie case of race discrimination, as the hearing examiner found, by the evidence that was adduced to show the substantially disparate treatment of the complainant, as compared with the white teacher, with regard to back pay after reinstatement. Thereafter, the burden shifted to the plaintiff employer to show a legitimate nondiscriminatory reason for the employer's conduct. Furnco Construction Corporation v. Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 57 L. Ed. 2d 957 (1978); McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Peters v. Jefferson Chemical Co., 516 F.2d 447, 450 (5th Cir. 1975). The hearing examiner concluded that the plaintiff board had not met its burden of justification. In reaching the contrary conclusion that underlying differences in the grounds of termination justified the plaintiff's disparate treatment of the black complainant and the white teacher, the trial court misconstrued the scope of its authority in reviewing an order of a hearing examiner. On appeal to the Court of Common Pleas, "[t]he findings of the hearing tribunal . if supported by substantial and competent evidence, shall be conclusive." G-eneral Statutes § 31-128 (b). "Substantial and competent evidence is that which carries conviction. It is such evidence as a reasonable mind might accept as adequate to support a conclusion. It means something more than a mere scintilla and must do more than create a suspicion of the existence of the fact to be established." Corey v. Avco-Lycoming Division, 163 Conn. 309, 322, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973); see International Brotherhood of Electrical Workers v. Commission on Civil Rights, 140 Conn. 537, 543-44, 102 A.2d 366 (1953). The court is thus limited to determining whether the tribunal's findings were supported by "substantial and competent evidence," and whether the tribunal exceeded its authority. General Statutes § 4-183 (g). The court cannot try the case de novo, adjudicate the facts, or substitute its own discretion for that of the tribunal. Norwich v. Norwich Fire Fighters, 173 Conn. 210, 214, 377 A.2d 290 (1977); International Brotherhood of Electrical Workers v. Commission on Civil Rights, supra, 544-A5. The trial court recognized that the "substantial and competent evidence" test defined and limited the scope of its review. Nowhere did the court find fault with the nature of the evidence pertaining to the sole issue before it, namely, whether there had been discrimination in back pay between the custodian and the teacher following reinstatement-. Instead, it focused on two concerns which individually and jointly are insufficient to overturn the conclusions of the hearing examiner. First, it pursued the reasons for the original decisions of termination and reinstatement, none of which was at issue before the hearing examiner. The hearing examiner might reasonably have concluded that, in light of the established pattern of limiting forfeiture of back pay to two weeks or less, this evidence was an insufficient justification for the seven month penalty imposed upon the complainant. Second, it emphasized the hearing examiner's own finding that the plaintiff had acted without discriminatory purpose and in good faith. As the hearing examiner held, good faith is not exculpatory under §31-126 (a), since the target of fair employment legislation is the effect, and not the purpose, of discrimination. Eve ning Sentinel v. National Organization for Women, 168 Conn. 26, 31-33, 357 A.2d 498 (1975). In the absence of any showing that the hearing tribunal abused its discretion, found facts without substantial and competent evidence, or otherwise acted arbitrarily, its decision and order must stand. There is error, the judgment is set aside, and the case is remanded with direction to dismiss the appeal and confirm the order of the hearing tribunal. In this opinion the other judges concurred. "[General Statutes] Sec. 31-126. unfair employment practices. It shall be au unfair employment practice (a) For an employer . . . beeause of the race . of any individual . to discharge from employment such individual or to discriminate against him in compensation or in terms, conditions or privileges of employment." The federal cases set out the standards for burden of proof under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Section 703 (a) (1) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (a) (1), prohibits unfair employment practices in language virtually identical to General Statutes § 31-126 (a). We have held that "[a]lthough the language of the federal statute and that of the Connecticut statute differ slightly, it is clear that the intent of the legislature in adopting [an amendment to $ 31-126] was to make the Connecticut statute coextensive with the federal. 12 S. Proc., Pt. 3, 1967 Sess., p. 1091. We are in accord with the federal courts whieh have held that the object of 42 U.S.C. § 2000e-2 (a) (and General Statutes § 31-126 [a]) is the prohibition of discrimination based on . . . race, color, national origin, or sex." Pik-Kwik Stores v. Commission on Human Rights & Opportunities, 170 Conn. 327, 331, 365 A.2d 1210 (1976). "[General Statutes] See. 4-183. judicial review, waiver of costs. . . . (g) 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 may affirm the decision of the agency or remand the ease for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant 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."

The plaintiffs' petitions for certification for appeal from the Superior Court in the judicial district of Fairfield at Stamford are denied by the court.

Grillo, J. By two separate informations, the defendant was charged with three counts of robbery in the first degree. Specifically, the state charged violations of General Statutes § 53a-134(a) (4), alleging that the defendant or another participant in the crimes displayed or threatened the use of what he represented by his words or conduct to be a pistol, revolver or other firearm. As all three robberies occurred in virtually the same location, only minutes apart, the informations were consolidated for trial. After a trial to a jury, the defendant was found guilty as charged. In this appeal from the judgments rendered, the defendant claims error in the refusal of the trial court to charge the jury on the offense of robbery in the second degree as a lesser included offense. The jury might have found the following facts relevant to the resolution of the present appeal: On March 18, 1980, each of the three complaining witnesses was robbed at gunpoint in the County Street area after leaving the New Haven Correctional Center. Items of personal property, including two pocketbooks, were taken from the victims. All three victims identified the defendant as the perpetrator of the crimes. The defendant testified that he and one William Jordan, while on their way to a package store, were in the general area at the time of the robberies and in fact witnessed part of the incidents, although he denied committing the crimes. The defendant stated that when he and Jordan returned to the defendant's home approximately fifteen minutes later he found his brother, Silas Harris, and one Albert Eaddy in his bedroom. Eaddy possessed a toy pistol and was going through two pocketbooks. Jordan testified that prior to the robberies he had observed Eaddy carrying a toy gun in the vicinity of the New Haven Correctional Institute. Subsequently, on his way back from the liquor store with the defendant, he saw Eaddy, who was still in possession of the toy pistol, running into an alley and away from the scene of the robberies. As he was also present in the bedroom upon returning to the defendant's residence, he once again observed Eaddy in possession of the toy pistol and what was apparently a purse. The defendant's brother, Silas Harris, testified that he and Eaddy committed two of the robberies in the County Street area on March 18. He further represented that Eaddy was in possession of a gun, and that after the robberies they proceeded to the defendant's residence. From our examination of the record before us, it is apparent that defense counsel adopted a two-tier strategy in defending against the first degree robbery charges. First, after filing a notice of an alibi defense, the defendant presented evidence that, although he was in the general area at the time of the crimes, he was not involved as either a principal or a participant, and further that Silas Harris and Eaddy actually perpetrated the crimes. The trial court charged the jury relative to the alibi defense. Second, the defendant attempted to show through proffered testimony that the gun used in the commission of the crimes was in fact a toy gun incapable of firing a shot, a circumstance which would constitute an affirmative defense to a charge of robbery in the first degree; General Statutes § 53a-134 (a) (4); and would thus reduce the crimes from robbery in the first degree to robbery in the second degree. See State v. Hawthorne, 175 Conn. 569, 573-74, 402 A.2d 759 (1978). On appeal, it is the defendant's contention that his introduction of evidence relating to the inoperability of the gun, coupled with the satisfaction of other prerequisites necessary for a lesser included offense instruction, required the trial court to charge the jury on robbery in the second degree as he requested. It is the state's contention that the evidence presented linking Silas Harris and Eaddy to the crimes, conjoined with the evidence relevant to the existence of a toy gun, does not constitute an affirmative defense, but merely a denial of the allegations of the charge consistent with the defendant's alibi claim. The state asserts that evidence tending to show that the crimes were perpetrated with a toy pistol is immaterial to an affirmative defense, characterizing an affirmative defense claim as one which concedes the basic position of the state, yet nevertheless denies guilt based upon mitigating circumstances. Underscoring the inconsistent alternative positions of alibi and affirmative defense assumed by the defendant, the state fears that contrived defenses would result "[i]f a defendant could deny participation in a robbery, offer evidence of someone else's involvement using a toy gun, and still avail himself of the affirmative defense under § 53a-134 (a) (4)." The state therefore concludes that to utilize the benefit of an affirmative defense claim, the defendant should "at least" concede his participation in the crime. In State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), we set forth certain conditions which must be met before a charge on a lesser included offense will be given: "(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence introduced by either the state or the defendant, or by a combination of their proofs, which justified conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser." The state concedes that the first two conditions have been met but insists that because of the inconsistent situation that would be created if an affirmative defense were allowed, conditions three and four cannot be fulfilled. We disagree. Generally, inconsistent defenses may be interposed in a criminal case. United States v. Demma, 523 F.2d 981, 985 (9th Cir. 1975); Whittaker v. United States, 281 F.2d 631, 632 (D.C. Cir. 1960). That a defense is interposed which is inconsistent with the defendant's alibi theory does not preclude an instruction as to that defense. People v. Hansma, 84 Mich. App. 138, 144-45, 269 N.W.2d 504 (1978). "[T]he fact that one defense is on the theory that [the] accused did not commit the offense, as where he relies on alibi, does not deprive him of the right to avail himself of other defenses . . . ." 22 C.J.S., Criminal Law § 54; see also Johnson v. United States, 426 F.2d 651, 656 (D.C. Cir. 1970); United States v. Harbin, 377 F.2d 78, 80 (4th Cir. 1967). To compel a defendant to admit guilt in order to invoke a defense effectively relieves the prosecution of proving his guilt beyond a reasonable doubt and frustrates the assertion of the defense itself and undermines its policy. People v. Perez, 62 Cal. 2d 769, 776, 401 P.2d 934 (1965). The state, in advancing its claim, cites State v. Rosado, 178 Conn. 704, 707, 425 A.2d 108 (1979), wherein this court held that " [a] claim of innocence or a denial of participation in the crime charged is not a legally recognized defense and does not entitle a defendant to a theory of defense charge." In Rosado, however, the defendant did not assert a recognized legal defense. This court, noting the plethora of affirmative defenses available to a defendant, held that when there is evidence indicating the availability of a recognized defense, a defendant is entitled as a matter of law to a theory of defense instruction Id., 708. Here there exists a recognized affirmative defense. G-eneral Statutes § 53a-134 (a) (4). Quite apart from whether the defendant might have been entitled to a "theory of defense" charge, the court was under a duty to instruct the jury upon any appropriate lesser offense included in the charge of robbery in the first degree. We now turn to a consideration of whether the conditions delineated within WMstnant as prerequisites to a lesser included offense instruction are present in this case. There was extensive evidence introduced at trial that a toy gun was used in the robberies and that subsequently the same gun Was present in the defendant's room, although it was claimed to be Eaddy's pistol. Upon being cross-examined by the prosecutor, the defendant was knowledgeable not only as to the description of the toy gun, but also as to its use and operation. The state's witnesses, the complainants, described the pistol as "silver and black," "two tone color," "black and white," and "a silver piece." Jordan described the toy gun as "grayish black." The defendant also testified that it was a "little black," and that it was metal. In view of the evidence presented above, we conclude that there was sufficient evidence to justify conviction of the lesser offense. Moreover, proof of the element which differentiates the offenses, the operability of the gun, was sufficiently in dispute so as to permit a finding that the defendant was guilty solely of second degree robbery. State v. Whist-nant, supra. Although the trier must draw inferences based upon facts established by evidence; State v. Saracino, 178 Conn. 416, 420, 423 A.2d 102 (1979); it is also the function of the trier to judge the weight and credibility of the proffered evidence upon which such reasonable inferences may or may not be drawn. State v. Staples, 175 Conn. 398, 407, 399 A.2d 1269 (1978). Under the circumstances of the present case, we cannot exclude as a matter of law the possibility that the evidence presented might support a conviction for a lesser offense in the eyes of the jury. See State v. Falby, 187 Conn. 6, 30, 444 A.2d 213 (1982). The court erred in refusing to instruct the jury as requested on the lesser included offense of robbery in the second degree. There is error, the judgment is set aside and a new trial is ordered. In this opinion the other judges concurred. In its entirety, General Statutes § 53a-134 states: "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: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be dieharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime. "(b) Bobbery in the first degree is a elass B felony provided any person found guilty under subdivision (2) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court." In its entirety, General Statutes § 53a-135 states: "robbery in THE SECOND DEGREE: CLASS C FELONY. (a) A person ÍS gUÜty of robbery in the second degree when he commits robbery and (1) he is aided by another person actually present; or (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument. "(b) Bobbery in the second degree is a class 0 felony." "Deadly weapon" means any weapon, whether loaded or unloaded, from which a shot may be discharged. General Statutes § 53a-3 (6). Obviously, this definition would include a pistol. When questioned as to how he knew that the gun possessed by Eaddy was a toy, Jordan stated that he had inquired of Eaddy and Eaddy had responded by allowing him to inspect it. The quantum of evidence presented relevant to the defendant's affirmative defense distinguishes this case from State v. Cassino, 188 Conn. 237, 449 A.2d 154 (1982). In Cassino, we upheld the trial court's refusal to charge the jury on the issue of self-defense. Id., 244. Although we attached significance to the fact that the defendant did not admit committing the crime charged; id., 243; our decision was based upon the conclusion that the defendant had failed to introduce sufficient evidence to warrant a self-defense instruction. Id., 243-44. Similarly, we distinguish those cases where the failure of the defendant to concede his commission of the prohibited act which he claimed to have been induced by police misconduct was partly relied upon in determining that the evidence was insufficient to support a defense of entrapment. See State v. Hawkins, 173 Conn. 431, 436, 378 A.2d 534 (1977); State v. Avery, 152 Conn. 582, 584, 211 A.2d 165 (1965). "Q. What kind of toy gun, what did it look like? "A. A little black — a—it looked like — I don't know. It wasn't plastic, it was metal. "Q. It looked like a real gun though? "A. It looked like it shot some kind of — some little yellow caps or something like that. I don't know. "Q. It shoots caps? "A. Not caps, like little red thing. Like a starter pistol or something like that."

Per Curiam. In this action which was returnable in 1974, the plaintiffs, Toni Grunschlag and Rosi Grunschlag seek money damages because of the consequences allegedly arising out of the defendants' notice not to renew the plaintiffs' annual contract at the defendant school where they had been members of the music faculty. Because of the inadequacy of the record presented to us on this appeal, we have, in our present disposition set out below, taken judicial notice of the Superior Court file in this case. (See Docket No. 10552, Grunschlag et al. v. Ethel Walker School, Inc., et al., Judicial District of Hartford-New Britain.) "There is no question . . . concerning our power to take judicial notice of files of the Superior Court, whether the file is from the case at bar or otherwise." Karp v. Urban Redevelopment Commission, 162 Conn. 525, 527, 294 A.2d 633 (1972); State v. Lenihan, 151 Conn. 552, 554, 200 A.2d 476 (1964). After a number of pleadings had been filed, the case was claimed for the jury docket and the trial list in March, 1977. The transcript filed discloses that when it was reached for trial on the civil jury trial list on March 4, 1980, the plaintiffs' counsel informed the court, Hendel, J., that "both plaintiffs live out of State; and are involved in scheduled public concert performances." The court replied: "We'll set it down for pretrial, and we'll set a date certain." It again appeared on the assignment list for March 11, 1980, and at that time the conrt said: "Over to 4/8 for a date certain." On April 8, 1980, the conrt said: "Grunsehlag versus Ethel Walker. That's specially assigned for 6/10." The judgment file in the record reflects in part that: "Said action came thence to June 10,1980 when the action was assigned for trial and when the Defendants appeared, but the Plaintiffs did not appear to prosecute their cause. The Court, on its own motion, entered a judgment of Dismissal as to both Plaintiffs." Thereafter, the plaintiffs filed a "Motion to Set Aside Dismissal." That motion, which sought to set aside the "suo motu" judgment of dismissal, contains various factual allegations, claimed as reasons for the setting aside of the judgment of dismissal. The court, Hendel, J., held a hearing on the motion and denied it as to the plaintiff Rosi Grunsehlag while granting it is to the plaintiff Toni Grunsehlag "provided each defense counsel is paid $260.00 by 12-15-80 in cashier's check." Thereafter, the plaintiff Rosi Grunsehlag took this appeal. In her brief on appeal she maintains that the "record" does not support the trial court's action in dismissing her case on the grounds that it was not prosecuted with reasonable diligence and that that court abused its discretion. A number of the factual allegations which appeared in this motion also appear in the "Statement of the Facts" in the plaintiff's brief; and the defendants claim that "not one of the ten paragraphs of plaintiff's 'Statement of the Facts' was properly supported in the record presented to [this] court by the plaintiff." (Emphasis in original.) The defendants do, however, concede that a portion of one paragraph of this statement of facts is supported by the transcript of the "court's weekly docket list call" which has been filed by them, i.e., that the case was specially assigned on April 8, 1980, for June 10, 1980. The plaintiff's "statement of facts" asserts as facts, inter alia, the following: On June 3, 1980, the plaintiff's counsel conferred with the presiding judge in chambers and requested that the trial be postponed because most of the plaintiff's witnesses would be unavailable on June 10 as they were employed in the academic field and had already dispersed for summer recess. He asserts that the judge granted his request and reassigned the case for trial on September 9, 1980, and so marked his assignment list. The plaintiff's counsel claims that on the morning of June 9, 1980, the defendants' counsel telephoned him, informing him that the presiding judge requested his immediate appearance in chambers. He complied, and the judge ordered him to be prepared to begin trial on the morning of June 10, 1980, or suffer a judgment of dismissal for failure to comply with this order. Despite the "protestations" of the plaintiff's counsel and his reference to the "reassignment date of September 9, 1980," the order to proceed on June 10, 1980, was not changed. Because, according to the plaintiff's counsel, he was unable to commence trial on June 10, 1980, the presiding judge, Hendel, J., "sua sponte," rendered a judgment of dismissal on that date. None of these "facts" is properly in the record before us except that the judgment of dismissal was rendered on June 10, 1980. From what we have said, it is clear that the record before us is quite inadequate to permit our determination of the issue presented. It is the burden of the plaintiff-appellant, utilizing the rules of practice, to present us with a proper record on the basis of which we can, in fairness to all the parties, determine the appeal. She has not carried this burden. In that regard, she has never moved either in the trial court or in this court for a further - articulation of the basis of the trial court's decision. Practice Book § 3082, 3060D. "We have said that "[t]his court cannot resort to matters extraneous to the formal record, to facts which have not been found and which are not admitted in the pleadings or exhibits which are not part of the record." (Citations omitted.) Rybinski v. State Employees' Retirement Commission, 173 Conn. 462, 465, 378 A.2d 547 (1977). That statement applies here. Although there have been changes in our rules of practice and we no longer have findings of fact in that format which we did prior to those changes, the observation that "[a] reference made merely in the 'statement of facts' in the brief, without support in the finding, does not constitute a fact in the case" which we made in Windham Community Memorial Hospital v. Willimantic, 166 Conn. 113, 123 n.6, 348 A.2d 651 (1974), is directly in point. "In the absence of specific findings by the trial court and a basis for its decision, we are not able to determine whether the court's discretion was abused in this case. Where 'necessary to the proper disposition of the cause,' this court may 'remand the case for a further articulation of the basis of the trial court's decision.' Practice Book § 3060D; Powers v. Powers, 183 Conn. 124, 125, 438 A.2d 845 (1981)." Kaplan v. Kaplan, 185 Conn. 42, 46, 440 A.2d 252 (1981). It is required for our ultimate disposition to have the circumstances surrounding the denial of the plaintiff's motion to open the dismissal articulated by the trial court. The case is remanded with direction to deliver the file to the judge, Hendel, J., who entered the judgment of dismissal with direction for an articulation of his decision. The defendants have filed a transcript which concerns the action of the court, Hendel, J., on March 4, 1980 and April 8, 1980 in open court in this ease. In oral argument before us it appeared that the defendants' counsel was not present at that time although he argues that the court apparently undertook to have the defendants' counsel notified of the claimed change in the trial date, We have not set out all those "facts" in the statement of facts in the plaintiff's brief that are not properly of record. We note from the Superior Court file that upon the plaintiff's filing of her "Motion to Set Aside Dismissal," the defendants filed their "Objection to Motion to Sot Aside Dismissal and Motion to Refer." In this objection, the defendants, inter alia, alleged that Judge Hendel "is intimately familiar with the facts" and they moved that "pursuant to the order of Judge Hendel at the time of entering the Judgment of Dismissal that plaintiff's motion be referred to Judge Hendel for decision." (Superior Court File No. 10552.)

Spallone, J. In this appeal, the plaintiff avers as error the actions of the trial court (1) in admitting the testimony of a witness after the defendant failed to disclose the witness' identity in response to the plaintiff's request for interrogatories and production, (2) in admitting the medical report of a physician pursuant to General Statutes § 52-174 (b), (3) in admitting testimony that the plaintiff had made a claim for personal injuries sustained in a motor vehicle accident subsequent to the accident at issue in the present action, and (4) in refusing to set aside the jury's verdict which the plaintiff claimed to be inadequate. In 1983, the plaintiff commenced this action, sounding in negligence, seeking to recover for personal injuries sustained by him in a motor vehicle accident which had occurred on March 15,1982. The defendant denied liability and filed a special defense of contributory negligence. This matter was tried before a jury in November of 1986. The jury ultimately returned a verdict in which it found that the plaintiff suffered damages in the amount of $14,000. The jury also found, however, that the plaintiff was 30 percent contributorily negligent, and, accordingly, awarded the plaintiff damages in the amount of $9870. The plaintiff's motion to set aside the verdict as inadequate was denied and the plaintiff appealed. We find no merit in any of the plaintiffs allegations of error. The plaintiff first challenges the trial court's ruling admitting the testimony of Robert Lesnow, a chiropractor who had treated the plaintiff for spinal complaints both before and after the March, 1982 accident. The plaintiff claims this witness should not have been permitted to testify because the defendant failed to disclose the witness' identity in response to the interrogatories propounded by the plaintiff. The trial court overruled the plaintiff's objection to the witness after a discussion outside the presence of the jury. During this discussion, defense counsel explained that he subpoenaed Lesnow only three days earlier and the chiropractor had yet to make any statements. In addition, defense counsel revealed that he had learned of Lesnow's existence through earlier discovery from the plaintiff. We cannot conclude that the trial court was "reverting back to the days of trial by ambush" as the plaintiff claims. After listening to the arguments of both counsel, the trial court concluded that the defendant would be prejudiced by the exclusion, of this witness and that the plaintiff could not legitimately claim surprise, having supplied information concerning the chiropractor to the defendant in the first place. We see no reason to meddle with this ruling. "The action of the trial court is not to be disturbed unless it abused its legal discretion, and '[i]n determining this the unquestioned rule is that "great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness." Dudas v. Ward Baking Co., 104 Conn. 516, 518, 133 A. 591 [1926] . . . . ' Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352 [1954]." Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 (1970), quoted by Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 108, 476 A.2d 1074 (1984). In the plaintiffs second claim of error, he contends that the court should not have admitted the x-ray report of radiologist Donald Zinn into evidence, pursuant to General Statutes § 52-174 (b). At the time the x-rays were taken, the plaintiff was being treated by Moshe Hasbani, a neurologist. Hasbani testified that he referred the plaintiff to Zinn to facilitate his diagnosis and treatment of the plaintiffs complaints. The report filed by Zinn analyzing the results of those x-rays was relied on by Hasbani and made a part of his file. The plaintiffs conclusion that this chain of events did not result in Zinn's becoming a "treating physician" within the meaning of § 52-174 (b) is contrary to the factual reality of the matter. The court did not err in admitting this report in accordance with § 52-174 (b). See Pulaski v. Ledwith, 5 Conn. App. 629, 632, 501 A.2d 396 (1985), cert. denied, 198 Conn. 803, 503 A.2d 1186 (1986). Third, the plaintiff argues that his testimony to the effect that he was involved in a subsequent motor vehi cle accident in which he suffered injuries and for which he made claims similar to his claims in this action should not have been admitted by the court. The plaintiff testified on direct examination about his involvement in a second motor vehicle mishap in July, 1982, five months after the accident at issue here. After repeated attempts to minimize the importance of this second accident's effect on his physical complaints, the plaintiff was asked during cross-examination whether he had made a claim for personal injuries stemming from the second aceident The trial court overruled the plaintiffs relevancy objection and permitted the plaintiff to answer. " 'Our rules of practice make it clear that when an objection to evidence is made, a succinct statement of the grounds forming the basis for the objection must be made in such form as counsel desires it to be preserved and included In the record. Practice Book § 288. "This court reviews rulings solely on the ground on which the party's objection is based." State v. Manning, 162 Conn. 112, 118, 291 A.2d 750 (1971).' " State v. Manluccia, 2 Conn. App. 333, 341, 478 A.2d 1035, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984). The plaintiff in this case gave no such supporting statement, instead choosing to rely only on his bald assertion that the testimony was irrelevant. Because our review of the trial court's ruling is limited to the ground asserted; State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982); and because the trial court is vested with broad discretion in its rulings on questions of relevancy; State v. Runkles, 174 Conn. 405, 413, 389 A.2d 730, cert. denied, 439 U.S. 859, 99 S. Ct. 177, 58 L. Ed. 2d 168 (1978); every reasonable presumption must be given in favor of the trial court's ruling. State v. Howard, 187 Conn. 681, 685, 447 A.2d 1167 (1982). We do not find an abuse of discretion in the admission of this testimony. Finally, the plaintiff claims that the trial court should have granted his motion to set aside the verdict as inadequate. This court has recently had a few opportunities to discuss the law in this area. See, e.g., Shea v. Paczowski, 11 Conn. App. 232, 526 A.2d 558 (1987); Zimny v. Cooper-Jarrett, Inc., 8 Conn. App. 407, 513 A.2d 1235 (1986); Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986). "Our function on appeal is . . . limited to determining whether the trial court abused its discretion in denying the plaintiffs' motion to set aside the verdict. Such a decision 'can be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury. [Maltbie,] Conn. App. Proc., p. 151.' Mulcahy v. Larson, 130 Conn. 112, 114, 32 A.2d 161 (1943)." Zarrelli v. Barnum Festival Society, Inc., supra, 327. In accordance with the principles espoused in Zarrelli and the cases cited earlier, we find that the trial court was justified in its refusal to set aside the verdict of the jury. There is no error. In this opinion the other judges concurred. Question nine of the plaintiffs interrogatories reads: "Has any oral statement been made to the defendants or any representative of the defense by any witness regarding any issue involved in this action?" The defendant responded negatively and, having done so, several subsequent questions, which sought more specific information regarding such an oral statement, were rendered inapplicable. It should be made clear that, although the witness was a chiropractor, he was not offered as an expert witness. The provisions of Practice Book § 220 and the.sanctions contained therein were never at issue here. General Statutes § 52-174 (b) provides in pertinent part: "In all actions for the recovery of damages for personal injuries . . . any party offering in evidence a signed report and bill for treatment of any treating physician . . . may have the report and bill admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of the treating physician . . . and that the report and bill were made in the ordinary course of business." For the first time, in his brief, the plaintiff claims that this testimony's probative value was far outweighed by its prejudicial effect on the jury. "[Ajssuming arguendo that a claim of irrelevancy invokes by implication a claim that the probative value of evidence is outweighed by its prejudicial impact," we do not change our conclusion that the trial court did not abuse its discretion. State v. Manluccia, 2 Conn. App. 333, 342, 478 A.2d 1035, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984).

The defendant's petition for certification for appeal from the Appellate Division of the Court of Common Pleas is denied.

The plaintiff's motion for a review of the trial court's refusal to make a finding in the appeal from the Superior Court in Hartford County is granted and 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.

Bogdanski, J. These two cases, arising out of the the same automobile accident, were consolidated for trial and have been combined on appeal by stipulation of the parties. In the first case the plaintiff, Clarence Thomas, sought to recover damages for personal injuries and property loss allegedly caused by the negligence of the town of Branford and its employee, Francis Commerford. In the second case, the town of Branford sought to recover property damage allegedly caused by Thomas's negligence. The jury returned verdicts in favor of Thomas in both cases. The town of Branford moved to,set aside the verdicts and for judgment in both cases in accordance with its motions for a directed verdict. Those motions were denied. From the denial of those motions the town of Branford and Commerford, hereinafter the defendants, have appealed to this court, and, from - the judgment rendered, Thomas has filed a cross appeal. The defendants have assigned error in the court's finding of fact's, in the charge to the jury, in the taking of judicial notice and in the denial of their motions. In the cross appeal, error has been assigned in the court's refusal to grant motions for" nonsuit and default, in the finding of facts, and in the court's conclusions. The offers of proof disclose the following: On March 30, 1967, Thomas was operating his motor vehicle southerly on Cedar Street, a public highway in Branford. His intention was to make a left turn into the driveway of his home located on the easterly side of Cedar Street. When about twenty-five feet north of his driveway he stopped his vehicle at the westerly curb. While so stopped he saw the Commerford vehicle about 350 feet to the south, headed northerly. Commerford testified that his speed was approximately twenty-five miles per hour. As Thomas proceeded to turn his vehicle left towards the driveway, the two vehicles collided in the northbound lañé. The Commerford vehicle left twenty-eight feet of tire marks on the pavement. At the close of evidence, Thomas requested that the court take judicial notice of a pamphlet published by the state of Connecticut entitled "Driver's Manual," dated May, 1972. A chart contained therein, incorporating a three-quarter second reaction time for the "average" driver, purported to show the braking and total stopping distance of motor vehicles at various speeds "under most favorable road conditions." Over the defendants' objection, the court took judicial notice of the chart and charged the jury that the "normal" total stopping distance of a vehicle traveling twenty miles per hour is forty-seven feet and that at thirty miles per hour, the stopping distance is eighty-eight feet. The court went on to say that the jury could consider those facts in connection with Commerford's testimony that he saw Thomas's vehicle ninety to one hundred feet away and that he was traveling twenty-five miles per hour. "The true concept of what is judicially known is that it is something which is already in the court's possession or, at any rate, is so accessible that it is unnecessary and therefore time wasting to require evidence of it. State v. Main, 69 Conn. 123, 136, 37 A. 80. Judicial notice, therefore, in its appropriate field, meets the objective of establishing facts to which the offer of evidence would normally be directed. De Luca v. Park Commissioners, 94 Conn. 7, 10, 107 A. 611. The underlying theory is that proof by evidence concerning a proposition may be dispensed with where the court is justified . in declaring the truth of the proposition without requiring evidence from the party. 9 Wigmore, Evidence (3d Ed.) § 2565. . . . Matters which may properly be judicially noticed in this way are those which come to the knowledge of men generally in the course of the ordinary experience of life or those matters which are . . . capable of ready and unquestionable demonstration. Roden v. Connecticut Co., 113 Conn. 408, 415, 155 A. 721." State v. Tomanelli, 153 Conn. 365, 368-69, 216 A.2d 625. The chart in question purports to show the "average" stopping distance for an automobile under "favorable" road conditions. Some jurisdictions have extended judicial notice to such charts; see, e.g., Autrey v. Swisher, 155 F.2d 18, 22 (5th Cir.); Winekoff v. Pospisil, 384 Mich. 260, 269, 181 N.W.2d 897; Blahnik v. Bax, 22 Wis. 2d 67, 72, 125 N.W.2d 364; while others have refused; see, e.g., Schuts v. Breeback, 228 Md. 179, 183, 178 A.2d 889; McCoy v. Gilbert, 110 Ohio App. 453, 460-64, 169 N.E.2d 624; Smith v. Hardy, 228 S.C. 112, 123, 88 S.E.2d 865. See, generally, note, 84 A.L.R.2d 979; 12 Blashfield, Automobile Law & Practice (3d Ed.) § 436.5, p. 135 n.30. We believe that the better rule is to exclude charts of total braking distances for automobiles from the realm of that which is judicially known. There are many factors which affect the stopping distance of a motor vehicle including the reaction time among individual drivers, the weight of the vehicle, the type and condition of brakes, the force with which the brakes are applied, and the type and condition of the roadway surface. See McDonald v. Mulvihill, 84 N.J. Super. 382, 388, 202 A.2d 213. Those factors are all interrelated, and each is a variable in any given situation. Charts showing stopping distances are based on certain assumptions as to those variable factors, which cannot be said to be generally known in the "ordinary experience of life or . . . capable of ready and unquestionable demonstration," State v. Tomanelli, supra, 369. The better practice is to have opinion testimony of an expert as to the speed of a motor vehicle based on skid marks and other physical facts proven on the trial of each particular case. See note, 29 A.L.R.3d 248, 252 §2[b]; see also Waldron v. Raccio, 166 Conn. 608, 612, 353 A.2d 770; Toomey v. Danaher, 161 Conn. 204, 210, 286 A.2d 293. When a witness testifies, his testimony can he challenged and the trier can pass on his credibility and determine what weight should be given to the evidence. This is not true when a fact is established by judicial notice. The suggestion in State v. Tomanelli, supra, 369, that judicial notice is not conclusive of the fact noticed since contrary testimony is permitted, cannot apply here where the request for judicial notice came after the close of evidence, and the taking of judicial notice by the court was first indicated in the charge. In Muse v. Page, 125 Conn. 219, 4 A.2d 329, this court refused to take judicial notice of the shortest distance within which a vehicle could be stopped. It is true that in Muse, this court did say, at page 225, in quoting from McCombs v. Fellis, 337 Mo. 491, 498, 85 S.W.2d 135: "While courts may not take judicial notice of the precise distance a given automobile may be stopped under given conditions, judicial notice has been taken of the limits within which a, stop could be effected." In the present casé, however, the court took judicial notice of the; average and not the range of stopping distances. The court advised the jury of the average stopping: distances of motor vehicles as matters judicially noticed, and established as facts .the stopping distance of Commerford's vehicle at two speeds. It, therefore, placed the average stopping distances before the jury as a test for measuring Commerford's speed, his testimony and his credibility. In so doing, the trial court erred. Since both cases must be remanded for new trials,.. a discussion of the second issue raised by the defendants is appropriate. In its charge to the jury the trial court read § 14-242 of the General Statutes and instructed them that if they should find that Thomas did not signal his turn into the private driveway for at least one hundred feet prior to making the turn, then they must find that he was in violation of that statute, and that the violation would constitute negligence per se. After exception was taken by Thomas, the court recalled the jury and charged that if they found that Thomas had stopped his vehicle at the westerly curb and that his turn into the driveway constituted a "new course of action," then Thomas "need not put on his light, because, of course, it would be physically impossible to put on your signal light if you are only going to travel five or ten or fifteen feet, and then make a left-hand turn . . . Section 14-242 states that "(a) No person shall turn a vehicle . to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a highway unless such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate signal in the manner provided in section 14-244. (b) A signal of intention to turn right or left shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning. . . ." The court's charge to the jury is tested by the claims of proof as they appear in the finding. State v. Edwards, 163 Conn. 527, 528, 316 A.2d 387; Southington v. Francis, 159 Conn. 64, 68, 266 A.2d 387. The claims of proof show that Commerford did not see Thomas's vehicle prior to the time it was stopped at the westerly curb of the road. Since there must be a causal relationship between the claimed wrongful conduct and the injury, any failure of Thomas to signal prior to the time he was seen by Commerford could not, as a matter of law, be said to be the proximate cause of the accident. See Pinto v. Spigner, 163 Conn. 191, 197, 302 A.2d 266; McDonald v. Connecticut Co., 151 Conn. 14, 19, 193 A.2d 490. Any error in the charge relating to the signaling requirements imposed on Thomas by § 14-242 prior to the time he stopped at the curb would therefore be harmless. Error, however, was committed in that portion of the corrected charge which indicated that Thomas need not signal his intention to turn left after the time he came to a stop at the westerly curb. That is contrary to the clear and unambiguous language of the last sentence of subsection (a) of § 14-242. "The signal must be given before the turn can be made legally." Marcio v. Helm's Express, Inc., 154 Conn. 615, 620, 228 A.2d 128. On cross appeal, Thomas pursued the claim that the court erred in refusing to grant his motions for nonsuit and default. The denial of a motion for nonsuit or default is committed to the discretion of the trial court and is not a ground of appeal, nor is it assignable as error. See Adamsen v. Adamsen, 151 Conn. 172, 177, 195 A.2d 418; Bradbury v. South Norwalk, 80 Conn. 298, 299, 68 A. 321; Dubuque v. Coman, 64 Conn. 475, 481, 30 A. 777. There is error in the first case, the judgment is set aside and the case is remanded for a new trial limited to the issue of liability. There is error in the second case, the judgment is set aside and the case is remanded for a new trial. In this opinion Shapiro, Loiselle and MacDonald, Js., concurred. As pointed out in the concurring opinion, infra, 72, the annotation in 84 A.L.R.2d 979 states in § 2 as follows: "In the overwhelming majority of the eases . . . the courts have ruled in favor of taking judicial notice of reaction time and stopping distance." That editorial comment, however, refers to all forms of sueh judicial notice, including eases where courts have done no more than note that "there must be some passage of time before the body can respond to the mind's perception of danger in the path of a moving vehicle." 84 A.L.R.2d 980 §3[b]. An examination of the cases cited in that annotation, as supplemented, reveals that the courts are fairly evenly divided on the issue of whether judicial notice ean be taken of precise stopping distances and reaction times as published in charts and pamphlets.

Peters, J. This is an action by a subcontractor to foreclose a mechanic's lien against a landowner whose property was improved by the subcontractor's work. The plaintiff, Rene Dry Wall Co., Inc., sued the defendant, Strawberry Hill Associates, to recover for work done pursuant to a contract with the defendant's general contractor, United Construction Ltd. The defendant's principal defense was that it was excused from obligation to the plaintiff because of good faith payments to the general contractor before notice of the plaintiff's lien and because of expenditures reasonably incurred to complete the construction project after the general contractor's default. The trial court found that this special defense had been proved and rendered judgment accordingly. The plaintiff has appealed. Many of the facts underlying this litigation are no longer in dispute. Strawberry Hill Associates (hereinafter Strawberry Hill), as owner, entered into a written contract on November 1, 1977, with United Construction, Ltd. (hereinafter United Construction), as general contractor, for the construction of a commercial building in Guilford, at a contract price of $411,734. In February of the following year, United Construction hired Rene Dry Wall Co., Inc. (hereinafter Rene Dry Wall) to supply the labor and the materials for the dry wall work for this project at a contract price of $35,050. Rene Dry Wall worked on the job from April to June of 1978. At the time it stopped working, it had virtually completed the job, and was owed $34,050. Strawberry Hill decided, in mid-June, that United Construction was unable to complete the job and, on June 14, 1978, notified United Construction that it was terminated. Thereafter Strawberry Hill itself completed the project by entering into separate contracts with various contractors and subcontractors. Rene Dry Wall had no direct contact with Strawberry Hill while United Construction was on the job. With respect to Rene Dry Wall's first bill of April 27, 1978, in the amount of $10,060, Rene Dry Wall executed a partial lien waiver at the request of United Construction and of Strawberry Hill's attorney. Rene Dry Wall never received this payment or any others, nor did it execute any further lien waivers. The day after Strawberry Hill's termination of United Construction, on June 15, 1978, Rene Dry Wall served a notice of mechanic's lien on Strawberry Hill. On June 19,1978, its mechanic's lien was recorded on the Guilford land records. In late June, Rene Dry Wall, in a meeting with Strawberry Hill, made a direct demand for payment, which was refused. During the spring of 1978, Strawberry Hill had made various progress payments, less ten percent retainages, to United Construction for work then completed and approved by the architect. Certain of these progress payments, although payable to United Construction, were pre-endorsed by Strawberry Hill to designated subcontractors. At the time of these progress payments, Strawberry Hill had heard rumors that United Construction was delinquent in paying subcontractors and suppliers. When Strawberry Hill took the project over from United Construction in mid-June of 1978, the work was not complete. Although Strawberry Hill then held retainages of $38,000, it eventually spent $49,311.85 in excess of the contract price to finish the job. Bene Dry Wall does not contest the fact that Strawberry Hill incurred these expenses, but it does challenge their reasonableness. The legal issues in this case are framed by the statutory provisions governing mechanic's liens. The two provisions most directly relevant are G-eneral Statutes § 49-33 and 49-36, which define and delimit the fund to which a properly noticed mechanic's lien may attach. Both of these sections start with the proposition that no mechanic's lien may attach to any building or land in an amount greater than the price which the owner has agreed to pay to the general contractor for the building being erected or improved. This amount may be diminished to the extent that it exceeds "the reasonable cost . of satisfactory completion of the contract plus any damages resulting from . . . default for which [the general contractor] might be held liable to the owner." General Statutes §49-33. The amount may be diminished further by "bona fide payments, as defined in section 49-36, made by the owner [to the general contractor] before receiving notice of [the mechanic's] lien or liens." General Statutes § 49-33. See Seaman v. Climate Control Corporation, 181 Conn. 592, 593-94, 605, 436 A.2d 271 (1980). These provisions make it clear that a contractor's right to recover on a mechanic's lien is not unlimited, despite the contractor's own good faith observance of the statutes. We have often noted that mechanic's lien legislation is remedial in nature, designed to furnish security for a contractor's labor and materials. Camputaro v. Stuart Hardwood Corporation, 180 Conn. 545, 550, 429 A.2d 796 (1980); Stone v. Rosenfield, 141 Conn. 188, 191, 104 A.2d 545 (1954); City Lumber Co. v. Borsuk, 131 Conn. 640, 645, 41 A.2d 775 (1945); Balch v. Chaffee, 73 Conn. 318, 320, 47 A. 327 (1900). Although this understanding of legislative purpose counsels generous construction in favor of the mechanic's lien, it does not permit us to extend the mechanic's lien beyond that which is authorized by the statutes. In Camputaro, supra, the contractor could not prevail because his work was not, within the statutes, lienable; here, the contractor's work is unquestionably lienable but his recovery is nonetheless subject to curtailment because of the conduct of the general contractor. If, as in this case, a general contractor receives progress payments that are not turned over to those who have done the work represented by the progress payments, and ultimately defaults entirely, the owner making such payments and completing such a job is protected as long as the owner acts in good faith and reasonably, as defined by the statutes. In determining whether the owner has met the statutory requirements of good faith and reasonableness, the trial court is making a finding of fact. See Purcell, Inc. v. Libbey, 111 Conn. 132, 139-41, 149 A. 225 (1930). The plaintiff's appeal does not contest the applicable legal principles but argues instead that the trial court erred in two of its factual findings, in its determination that the defendant owner's payments to the general contractor had been made in good faith and in its determination that the defendant had incurred reasonable costs of completion in excess of the plaintiff's claim. Our review of a trial court's factual findings is limited to a consideration of whether the decisions of the trier were clearly erroneous in light of the evidence and the pleadings in the record as a whole. Practice Book, 1978, § 3060D; Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980). We find no error here. There was substantial evidence to support the trial court's finding that the payments made by the defendant were made in good faith. The statute, § 49-33, imposes no duty of inquiry upon the owner but rather affords protection for bona fide payments "made by the owner before receiving notice of such lien or liens." At best, the owner had information that the general contractor had been delinquent in making some payments to subcontractors, that the general contractor had requested that some checks be pre-endorsed to designated subcontractors, and that the plaintiff had executed one, only partial, lien waiver. In their totality, these facts do not demonstrate a lack of good faith. There was evidence neither of collusion with the general contractor designed to defeat the rights of the plaintiff, nor of misrepresentations by the defendant to the plaintiff to induce further performance than was financially warranted. The defendant's conduct is therefore readily distinguishable from the egregious misconduct which this court characterized as constituting had faith in Purcell, Inc. v. Libbey, 111 Conn. 132, 139—41, 149 A. 225 (1930). The trial court also made findings of fact, challenged on this appeal, about the reasonableness of the costs incurred by the defendant to complete the job after the default of the general contractor. The statute allows the owner a credit for "the reasonable cost . of satisfactory completion of the contract plus any damages resulting from such default." General Statutes § 49-33. The trial court found that the cost of completion exceeded the contract price by $49,311.85; the parties are in apparent agreement that the unpaid contract price, at the time of default, included retainages in the amount of $38,000. Although there was no explicit finding that the defendant's expenditures were reasonable, such a conclusion is implicit in the trier's findings, and is supported by testimony that the defendant engaged in arm's length transactions with those whose work was required to complete the project. The plaintiff's most telling attack on the conclusion of reasonableness focuses upon testimony elicited from Russell Waldo, one of the defendant's general partners. Waldo acknowledged that the defendant had paid a premium to some workmen to get the job done, and that the premium in some cases included paying former subcontractors for unpaid work performed while the general contractor was still in charge of the project. The plaintiff argues that it was unreasonable for the defendant to pay some hut not all of the subcontractors left unpaid after the general contractor had been terminated. The plaintiff in essence complains that it was unfair not to recognize its claim, upon substan tial completion of its work, when others whose work came later were paid in full, merely because the owner still needed the services of the others in order to complete the job. The answer to this complaint is twofold. First, the statute imposes no absolute ban on preferential payment of some unpaid subcontractors, proscribing only payments, after notice of lien, to the original, general contractor. General Statutes § 49-36. Although § 49-36 does require pro rata allocation of proceeds among unpaid subcontractors, that provision does not come into play until it is determined that there are net proceeds available for distribution, taking into account the diminutions from the contract price authorized by § 49-33 and 49-36. Second, the possible unfairness of preferential treatment, as well as its possible justification in light of the exigencies of the market confronting the owner upon the general contractor's default, are elements to be considered by the trier of fact as part of the determination of reasonableness. The plaintiff's disappointment does not per se make the defendant's choices unreasonable. As an adjunct to its disagreement with the trial court's finding of reasonableness, the plaintiff places special reliance on the fact that the contract between the general contractor and the defendant allocated certain funds as retainages, inter alia, for unsettled claims. The plaintiff asks us in effect to impose a trust upon the $38,000 retainage at the time of termination. A retainage enters into the calculation of the unpaid contract price and thus into the deter mination of whether there will he net proceeds for allocation to unpaid subcontractors, in accordance with § 49-33 and 49-36. The statutes say nothing further with respect to the distribution of a retain-age. We find no authority, either in the statutes or in our cases, to construe a contract provision for a retainage as imposing a fiduciary obligation on an owner for the benefit of unpaid subcontractors. There is no error. In this opinion the other judges concurred. Although there were other subcontractors also involved as parties in the litigation in the trial court, only the dispute between the plaintiff and the named defendant is currently before us on this appeal. At the time of the filing of the lien General Statutes § 49-33 provided, in relevant part: "mechanic's lien, precedence. eights op subcontractors. If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction . of any building . . . and such claim is by virtue of an agreement with or by consent of the owner of the land upon which such building is being erected . . . such building, with the land . . . shall be subject to the payment of such claim. Such claim shall be a lien on such land, building and appurtenances . . . and shall take precedence over any other encumbrance originating after the commencement of such services, or the furnishing of any such materials, subject to apportionment as provided in section 49-36. . . . No mechanic's lien shall attach . in favor of any subcontractor to a greater extent in the whole than the amount which the owner has agreed to pay to any person through whom such subcontractor claims subject to the provisions of section 49-36. . . . [T]he total of such lien or liens shall not attach . to a greater amount in the whole than the amount by which the' contract price between the owner and such person exceeds the reasonable cost . of satisfactory completion of the contract plus any damages resulting from such default for which such person might be held liable to the owner and all bona fide payments, as defined in section 49-36, made by the owner before receiving notice of such lien or liens. ." In the technical revision of title 49 in 1979, the material part of § 49-33 has become §49-33 (f). Public Acts 1979, No. 79-602, §86. At the time of the filing of the lien General Statutes § 49-36 provided, in relevant part: "liens limited; apportionment; payments to original contractor. No such lien shall attach to any building or its appurtenances, or to the land on which the same stands . to a greater amount in the whole than the price which the owner agreed to pay for such building and its appurtenances . When there are several claimants and the amount of their united claims exceeds such price, the claimants, other than the original contractor, shall be first paid in full, if the amount of such price is sufficient for that purpose; but, if not, it shall be apportioned among the claimants having such liens, other than the original contractor, in proportion to the amount of the debts due them respectively . . . but, in determining the amount to which any lien or liens shall attach . . . the owner . . . shall be allowed whatever payments he has made, in good faith, to the original contractor or contractors, before receiving notice of such lien or liens. . . ." In the technical revision of title 49 in 1979, these parts of § 49-36 have become §49-36 (a), 49-36 (b) and 49-36 (e). Public Acts 1979, No. 79-602, § 92. It is uncontested that Bene Dry Wall properly gave notice of and filed its mechanic's lien. The contract between the owner and the general contractor contains, in article 5, provisions for progress payments "less such retainages as the Architect shall determine for all incomplete Work and unsettled claims." The contract, therefore, did not allocate all retainages to the settlement of unpaid claims.

Borden, J. The defendant appeals from the judgment of conviction, after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134, assault in the first degree in violation of General Statutes § 53a-61 (a) (1), and assault in the third degree in violation of General Statutes § 53a-59 (a) (1). The sole issue on appeal is whether the trial court erred in instructing the jury, under the authority of Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960), that it could draw an adverse inference from the defendant's failure to call his sister as a witness on his behalf. We find no error. The jury could reasonably have found the following facts: On January 12, 1986, John Caramavros, the owner of the Town Pizza restaurant in Ansonia, was present in his restaurant with his wife, Alexandria Caramavros. At approximately 10:30 p.m., the defendant entered the restaurant. He struck John Caramavros in the face and ribs. He also beat Alexandria Caramavros severely about the face. While this was occurring, an unidentified accomplice entered the restaurant and took $120 from the cash register. The defendant testified on direct examination that he had been in a nightclub at the time of the robbery. He further testified that when he returned home at approximately 12:30 a.m., his sister, Tracey Howard, told him that the restaurant, which was located near their apartment, had. been robbed. According to the defendant's testimony, he then asked Howard if the perpetrators had been caught and stated to her that the police would probably catch them soon. On cross-examination, the defendant testified that, at the time of this conversation with Howard he lived with her in her apartment in Ansonia, and that she still lived at that address. The defendant did not attempt to produce Howard as a witness on his behalf. The court granted the state's request that it give a Secondino charge to the jury regarding Howard. The defendant properly excepted to the instruction. The defendant claims that a Secondino charge was improper because the state had not shown that Howard was in fact available. We disagree. " 'There are two requirements for the operation of the [Secondino] rule: The witness must be available, and he must be a witness whom the party would naturally produce.' Secondino v. New Haven Gas Co., supra; see State v. Roma, 199 Conn. 110, 120, 505 A.2d 717 (1986); State v. Hart, 198 Conn. 424, 428, 503 A.2d 588 (1986)." State v. Shashaty, 205 Conn. 39, 43, 529 A.2d 1308 (1987). "In deciding whether the state satisfied the first requirement of the Secondino rule we must determine whether there was sufficient evidence to sup port a finding by the jury that the missing witness was available to the defendant." State v. Daniels, 180 Conn. 101, 110, 429 A.2d 813 (1980). If the evidence was sufficient to support that finding, the court's charge was properly given. Id. The facts available to the court regarding Howard's availability were sufficient to warrant the Secondino charge to the jury.. The defendant had testified that Howard was still living at the same apartment in Ansonia. Furthermore, the defendant's counsel acknowledged in argument to the trial court that "we can have a subpoena served on her . . . served on her residence . . . probably within an hour." The defendant's argument that Howard was not available is based on the difficulty which the state had in trying to produce her as a witness. The record discloses that Howard had given the police a sworn statement implicating the defendant based on inculpatory remarks he had made to her. The record further discloses that the state had served her with a subpoena two weeks earlier, that she had been seen in the area since then, that she had not responded to the subpoena, and that she seemed to be avoiding the police so she would not have have to testify. Despite determined efforts, the state was unable to produce her as a witness. The unavailability of a witness to the state does not, however, preclude a finding that the witness was available to the defendant, and does not preclude a Second,ino charge adverse to the defendant. State v. Vilalastra, 9 Conn. App. 667, 676, 521 A.2d 170 (1987) (where witness unavailable to state, but available to defendant, Secondino charge against defendant authorized). Under the facts of this case, the defendant cannot ride the coattails of the state's lack of success in securing Howard's testimony against him. There is no reason to think that Howard's unavailability to the state carried over to the defendant. The fact that she might not want to testify for the state against her brother does not require a conclusion that she would not respond to her brother's request to give evidence favorable to him. There is no error. In this opinion the other judges concurred. The challenged instruction was as follows: "Now it's necessary that I comment about a concept in our law dealing with a party's failure to call a witness, who is within his power to produce, and would naturally have been produced by him, permits the inference that the [testimony] of the witness would have been unfavorable to the party's case. In this ease, it's my recollection the accused testified that he arrived home at 51 Fourth Street around 12:30 a.m. on the morning after the occurrence of this robbery, and was told by his sister of the robbery. He asked her if the person was caught. He testified that his sister still lives at that address. She was not called as a witness by the accused. For this rule to apply, the witness must be available, and be a person the party would naturally produce. If you find that both these requirements have been met, then you are permitted to draw the inference that the testimony of Tracey Howard would be unfavorable to the accused." The defendant does not argue that the state failed to meet the second prerequisite of a valid Secondino charge, namely, that Howard was a witness whom the defendant would naturally have produced to testify.

Wright, J. In this case the basic facts are not in dispute. The defendants are trustees of the property of the Penn Central Transportation Company (hereinafter Penn Central). Penn Central, in 1972, was the owner of property lying northerly of properties owned and rented by the plaintiff, Page Motor Company, Inc. (hereinafter Page Motors). Both properties were on the northerly side of Bridgeport Avenue (also known as the Boston Post Road) in the town of Milford. The land contours are such that the land slopes down from the Boston Post Road to the Penn Central property, which property is a raised embankment on the top of which are railroad tracks. The Page Motors' property is on the down slope between the Boston Post Road and the railroad. The natural flow of surface water in the area is from south of the Boston Post Road, across the road, down the slope (on which is situated Page Motors) and to the base of the embankment. There is a stone culvert in the Penn Central embankment through which surface water flows at times, and from there it continues northerly across a swamp, through a ten inch pipe under a dirt service road and into Beaver Brook. On June 18, 1972, and June 19, 1972, there was a major rainstorm in the area. The storm deposited approximately 7.16 inches of rain on the area in a twenty-nine hour period, beginning around noon on June 18,1972, and ending by 5 p.m. on June 19,1972. As a result of this storm, the area just south of the Penn Central property filled with water which rose onto a lot near the tracks on which Page had stored new automobiles. Forty-nine such vehicles were damaged. By stipulation of the parties, the damage to the vehicles was $39,284.04. For many years prior to June 19, 1972, Penn Central owned, possessed, maintained and controlled the railroad culvert. For at least eighteen months prior to June 19, 1972, Penn Central did not inspect the culvert. It is the contention of the plaintiff that the flooding was due to the clogged condition of the culvert. The trial referee made the following finding of facts in his decision: "It is important to note that the instant case deals with 'surface water' and that the surface water which created the flooding did not come from Penn Central property. 'Surface waters are those casual waters which accumulate from natural sources and which have not yet evaporated, been absorbed into the earth, or found their way into a stream or lake.' Taylor v. Conti, 149 Conn. 174, 178 [177 A.2d 670 (1962)]. Each eyewitness to the flooding who testified in this case was asked the source of the flood waters. Each testified that the water creating the flooding south of the culvert was either falling from the sky or flowing down the slope from the Boston Post Road. All expert witnesses agreed that no significant amount of water came from the Penn Central property." An examination of the record reveals that this finding of facts cannot be disturbed. Although much of the trial referee's decision deals with the history of the law on the rights of neighboring landowners in connection with surface waters, and particularly with the common enemy doctrine, the finding of facts is dispositive of this appeal. In view of the fact that the plaintiff was not able to prove that any acts by the defendants caused the damage to the plaintiff's automobiles, no liability can be assessed against the defendants. "Negligence is not a tort unless it results in the commission of a wrong . . . ." Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 345, 162 N.E. 99 (1928). We feel constrained, however, to comment upon the closing words of the trial referee in his opinion: "I conclude that Penn Central had an absolute right to repel the surface [waters] here involved by direct, intentional conduct or carelessness. As such, no duty was owed Page Motors." While the trial referee was correct in his analysis of the legal history of the common enemy doctrine, we feel that the time has come to alleviate the harshness of that doctrine. The so-called common enemy doctrine, briefly stated, is that the owner of land may repel or divert surface waters from its land on to that of another. Chadeayne v. Robinson, 55 Conn. 345, 11 A. 592 (1887); Grant v. Allen, 41 Conn. 156 (1874). The court in Tide Water Oil Sales Corporation v. Shimelman, 114 Conn. 182, 158 A. 229 (1932), summarized the law as follows (pp. 189-90): "Speaking generally, onr law may be summarized as follows: A landowner is under no duty to receive upon his land surface water from the adjacent properties, but in the use or improvement of it he may repel such water at his boundary. On the other hand, he incurs no liability by reason of the fact that surface water falling or running onto his land flows thence to the property of others in its natural maimer. But he may not use or improve his land in such a way as to increase the total volume of surface water which flows from it to adjacent property, or as to discharge it or any part of it upon such property in a manner different in volume or course from its natural flow, to the substantial damage of the owner of that property." In other words, up to the present time Connecticut has adopted the common-law rule, which is termed in American Law Reports Annotated as the common enemy doctrine. This doctrine attaches to land ownership the privilege to repel surface waters, even though this might increase the burden upon another. In such event, the repelling landowner is excused from liability, in spite of the fact that his conduct may be the proximate cause of the damage. We now feel that the inflexibility of the old rule, as correctly reported by the trial referee, should be modified so as to allow some reasonable latitude. By way of dictum, we are now inclined to adopt what some jurisdictions have termed the reasonableness of use rule. Generally, under the rule of reasonable use, the landowner, in dealing with surface water, is entitled to take only such steps as are reasonable, in light of all the circumstances of relative advantage to the actor and disadvantage to the adjoining landowners, as well as social utility. Ordinarily, the determination of such reasonableness is regarded as involving factual issues to be determined by the trier. Annot., 93 A.L.R.3d 1193 (superseding 59 A.L.R.2d 421). The reasonable use rule was apparently first adopted in New Hampshire. Noting the inconvenience which would arise from adopting extreme rules that a landowner has either no right of drainage or an absolute right, the court in Bassett v. Salisbury Mfg. Co., 43 N.H. 569 (1862) (which was apparently primarily concerned with percolating waters), said that the sole ground of qualification of the landowners's right of drainage was the similar rights of others. The court went on to say that the extent of the qualification should be determined under the rule of reasonable use, the rights and enjoyment of each landowner being similar and dependent upon the rights and enjoyment of other landowners. In other words, such rights must be exercised with reference to the rights of others. The reasonable use rule as applied to percolating waters was held to apply also to surface waters in Swett v. Cutts, 50 N.H. 439 (1870). New Jersey was one of the pioneers in adopting the common enemy doctrine, which was applied in that jurisdiction with considerable strictness. The common enemy rule was abandoned, however, in Armstrong v. Francis Corporation, 20 N.J. 320, 120 A.2d 4 (1956). The court said that the casting of surface waters from one's own land upon the land of another, in circumstances where the resultant material harm to the other was foreseen or foreseeable, would appear on the face of it to be as tortious and actionable as was any other unreasonable use of the possessor's land. Concluding that the problems raised by the diversion of surface waters should be approached under tort rather than property concepts, the court declared its adherence to the reasonable use rule, which was said to have the particular virtue of flexibility, since the issue of reasonableness became a question of fact to be determined in each case under a consideration of all the relevant circumstances, including such factors as the amount of harm caused, its foreseeability, the purpose or motive with which the act was done, and the consideration whether the utility of the use of the land outweighed the gravity of the harm resulting. See also Hopler v. Morris Hills Regional District, 45 N.J. Super. 409, 133 A.2d 336 (1957). Several other jurisdictions have adopted the rule of reasonable use: Weinberg v. Northern Alaska Development Corporation, 384 P.2d 450 (Alaska 1963); Pendergrast v. Aiken, 293 N.C. 201, 236 S.E.2d 787 (1977); Butler v. Bruno, 115 R.I. 264, 341 A.2d 735 (1975); Mulder v. Tague, 85 S.D. 544, 186 N.W.2d 884 (1971); State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974). See also a recognition of this new trend in Bishop v. Richard, 193 Md. 6, 65 A.2d 334 (1949), and Battisto v. Perkins, 210 Md. 542, 124 A.2d 288 (1956). Although we now announce our decision to replace the common enemy doctrine with the rule of reasonable use, we reiterate that our redefinition of the duty of a landowner with respect to foreign surface waters cannot avail the present plaintiff. In this case, the plaintiff cannot recover because it was not able to establish that the defendants' conduct was a substantial factor in causing the damage it suffered. There is no error. In this opinion Peters and O'Donnell, Js., concurred.

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.

Borden, J. In this wrongful death action, the plaintiff appeals from judgments rendered in favor of three defendants following the granting of the defendants' motions to strike the plaintiffs complaint. The principal issue of the appeal is whether a passenger in a car owes a legal duty to take action to prevent harm to a fellow passenger who is about to be or has been injured by the conduct of the driver of the car. The plaintiff raises claims of both procedural and substantive error by the trial court. We find error in the rendering of judgment in favor of the defendant Andrew Priest, and no error with respect to the rendering of judgment in favor of the defendants Jeff Kosky and Denise Zemke. The plaintiff's original complaint alleged that the plaintiff's decedent, David Dennison, was a passenger in a car being operated by David Martorelli. The defendants, Lewis Klotz, Denise Zemke, Jeff Kosky, and Andrew Priest, were also passengers in that car when it collided with a tree, throwing Dennison out of the rear hatchback window and onto the ground behind the car. Thereafter, the driver of the car ran over Dennison, causing his death. In its first count, the original complaint alleged that Dennison's death was proximately caused by the negligence of the defendant passengers in various enumerated ways. In its second count, the complaint set out a claim of negligent infliction of emotional distress. Priest filed a motion to strike the original complaint, claiming that the complaint failed to state a claim upon which relief could be granted. By memorandum of decision dated September 11,1984, the trial court, Fishman, J., granted the motion to strike as to the defendant Priest. On September 21, 1984, the plaintiff filed a motion to extend the time within which to replead through October 22,1984. No action was taken by the court in response to this motion. On February 18, 1985, the plaintiff filed a request for leave to file a substitute complaint as to all the defendants. The substitute complaint claimed (1) negligence on the part of the four passenger defendants, (2) reckless and wanton misconduct on the part of the four defendants, (3) negligence on the part of the four defendants in that they knew of, or should have known of, the driver's reckless and wanton misconduct, and (4) wrongful infliction of emotional distress. No objections to the request for leave to file a substitute complaint were filed by any of the defendants. Priest did not file a responsive pleading to the substitute complaint. Instead, on March 1, 1985, Priest filed a motion for judgment on the court's September 11, 1984 order striking the original complaint as to him. The plaintiff timely objected to the motion for judgment. On June 26, 1985, the trial court, D. Dorsey, J., granted the motion for judgment. Thereafter, the defendants Kosky and Zemke each filed a motion to strike the substitute complaint. They claimed that the substitute complaint attempted to state a cause of action between two passengers in a motor vehicle for injuries received by one of the passengers as a result of the operation of the motor vehicle by the driver, and that no such cause of action is recognized in Connecticut. After these motions were granted by the court, Byrne, J., judgment was rendered by the court, Hále, J., for these defendants. This appeal followed. I We first consider the rendering of judgment in favor of Priest. The plaintiff raises several claims of error, some of which are procedural in nature while others are more properly viewed as substantive. Because we find procedural error in the court's rendering of judgment necessitating further proceedings, we confine our discussion of the plaintiffs claims, as they relate to this defendant, to the dispositive procedural issue. The trial court granted Priest's motion for judgment, filed on March 1,1985, because the plaintiff had failed to replead within the fifteen day period prescribed by Practice Book § 157, or within the period referred to in her motion for extension of time. The court held that the plaintiffs attempt to replead thereafter through a request for leave to file a substitute complaint pursuant to Practice Book § 176, was improper, notwithstanding the fact that Priest had not filed an objection to the plaintiffs request. The plaintiff contends that the court erred in granting Priest's motion for judgment. We agree. Practice Book § 176 provides in pertinent part that "a party may amend his pleadings . at any time . . . (c) [b]y filing a request for leave to file such amendment, with the amendment appended . . . . " (Emphasis added.) If no objection to the request is filed within fifteen days of the date of the filing of the request, the amendment is deemed to be filed with the consent of the adverse party, and the trial court has no discretion to deny the request. Practice Book § 176; Darling v. Waterford, 7 Conn. App. 485, 487, 508 A.2d 839 (1986). Practice Book § 157 does not preclude an attempt to replead under § 176 after the expiration of the fifteen day period following the granting of a motion to strike. Section 157 provides that where no new pleading is filed within the fifteen day period,.the court "may upon motion" render judgment against the party whose pleading has been stricken. The use of the phrase "may upon motion" demonstrates that judgment does not enter automatically after the failure to replead during the time period set out in § 157. Since further action is required to obtain judgment, the party against whom judgment is sought may avail herself of the opportunity to request leave to file an amended or substitute complaint pursuant to § 176 at any time prior to the rendering of judgment. This view of Practice Book § 176 is consistent with the policy underlying General Statutes § 52-121 (a). That statute provides that "[a]ny pleading in any civil action may be filed after the expiration of the time fixed by statute or by any rule of court until the court has heard any motion for judgment by default or nonsuit for failure to plead which has been filed in writing with the clerk of court in which such cause is pending." See also Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259, cert. denied, 449 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 221 (1980). When the court in this case considered Priest's motion for judgment upon the plaintiff's original complaint, that complaint had been replaced by the substitute complaint, which was deemed to have been filed with the consent of Priest in the absence of his objection thereto. Since the original complaint was no longer in the case, and Priest had never pleaded in response to the substitute complaint, it was error to render judgment upon the original complaint. See Wooster v. Jerome, 131 Conn. 266, 38 A.2d 683 (1944). The plaintiff's case against Priest must therefore be remanded for further proceedings upon the substitute complaint. II We next consider whether the plaintiff stated a cause of action in her substitute complaint against the remaining defendants, Kosky and Zemke, both fellow passengers of the plaintiffs decedent. The plaintiff alleged that these defendants were negligent and engaged in reckless or wanton misconduct by failing to maintain a proper lookout and in overcrowding the Martorelli car; in failing to warn the operator of the car that Dennison had been thrown out of the car and was in danger, "when they had the actual ability and authority to control the driver's action by reasonable instructions"; in permitting their faculties to become so impaired by the use of alcohol that they could neither observe Dennison being thrown from the car nor warn the driver of Dennison's peril; and in failing to stop "and render any kind of assistance to their fellow passenger when the same was reasonably necessary under the circumstances" after Dennison was injured by the driver's operation of the car. It is important to note what the substitute complaint does not allege. It does not allege any facts from which it might be determined that the parties were in any relationship, other than as fellow passengers. The complaint does not allege that the defendants engaged in any affirmative action which inflicted harm on Dennison, either by way of direct conduct or by way of encouragement or participation. The plaintiff claims that the court erred in granting the motions to strike the substitute complaint, filed by the defendants Kosky and Zemke. We disagree. A motion to strike challenges the legal sufficiency of the allegations of a complaint, and is appropriately granted where there is no basis upon which relief can be granted. Practice Book § 152 (1). "It is axiomatic that, in passing on a motion to strike based on a claim of failure to state a cause of action, we must take the facts alleged favorably to the pleader and view those facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly probable under them." Schmidt v. Yardney Electric Corporation, 4 Conn. App. 69, 74, 492 A.2d 512 (1985). The trial court determined that the plaintiffs substitute complaint failed to state a cause of action in that the plaintiff "failed to allege a relationship between the decedent and the [defendants] 'by which the latter owes a duty to former.' Neal v. Shiels, Inc., 166 Conn. 3, 12, 347 A.2d 102 (1974)." We agree with the trial court. "Negligence is a breach of duty." Urban v. Hartford Gas Co., 139 Conn. 301, 304, 93 A.2d 292 (1952). 'To sustain a cause of action [in negligence] the court must determine whether the defendant owed a duty to the plaintiff's decedent . The existence of a duty is a question of law." (Citation omitted.) Shore v. Stonington, 187 Conn. 147, 151, 444 A.2d 1379 (1982). With respect to this claim of error, then, the central question to be resolved is whether a passenger in a car owes any legal duty to take action to prevent harm to a fellow passenger who is about to be injured or has been injured by the conduct of the driver of the car. The plaintiff correctly points out that older Connecticut case law has recognized that, under extreme and particularized circumstances, there may be a very limited duty required of a passenger in an automobile "to look out for threatened or possible dangers, and to warn the driver of such after their discovery." Clarke v. Connecticut Co., 83 Conn. 219, 224, 76 A. 523 (1910); see also Boscarello v. New York, N. H. & H. R. Co., 112 Conn. 279, 152 A. 61 (1930); Tracy v. Welch, 109 Conn. 144, 145 A.2d 662 (1929). Clarke and its progeny suggest only that a passenger who fails properly to carry out this very limited duty may be barred from or limited in her recovery under the doctrines of contributory or comparative negligence. See also 7A Am. Jur. 2d, Automobiles and Highway Traffic § 596, 600, 601. These cases, however, involve only the duty of a passenger in an automobile to exercise reasonable care for her own safety. The general rule with respect to a passenger's duty to exercise care or perform some act for the protection of third parties is otherwise: "[A]n occupant of a motor vehicle other than the driver is not liable for injury to a third person due to the negligence of the driver, in the absence of evidence that the occupant had some control over the driver, or that the driver was in the occupant's employ, or that the driver and the occupant were engaged in a joint enterprise." Id., § 635. The distinction between a failure to act which will constitute a passenger's contributory or comparative negligence, and a passenger's similar failure to act which will not create liability to a third party, is supported by the case law of other jurisdictions; see, e.g., Martinson v. Cagle, 454 So. 2d 1383, 1386 (Ala. 1984); Coffman v. Kennedy, 74 Cal. App. 3d 28, 32-33, 141 Cal. Rptr. 267 (1977); Martino v. Leiva, 133 Ill. App. 3d 1006, 1008, 479 N.E.2d 955 (1985); Fugate v. Galvin, 84 Ill. App. 3d 573, 406 N.E.2d 19 (1980); Clark v. Mincks, 364 N.W.2d 226, 231-32 (Iowa 1985); Akins v. Hamblin, 237 Kan. 742, 703 P.2d 771 (1985); Anthony v. Kiefner, 96 Kan. 194, 150 P. 524 (1915); Danos v. St. Pierre, 383 So. 2d 1019, 1021-22 (La. App. 1980), aff'd, 402 So. 2d 633 (La. 1981); Sloan v. Flack, 150 So. 2d 646 (La. App. 1963); Olson v. Ische, 343 N.W.2d 284, 287-88 (Minn. 1984); Moya v. Warren, 88 N.M. 565, 544 P.2d 280 (1975); Cecil v. Hardin, 575 S.W.2d 268, 270 (Tenn. 1978); Hale v. Allstate Ins. Co., 639 P.2d 203, 205 (Utah 1981); Price v. Halstead, 355 S.E.2d 380, 385-86 (W. Va. 1987); Reiter v. Grober, 173 Wis. 493, 494-95, 181 N.W. 739 (1921); Winslow v. Brown, 125 Wis. 2d 327, 371 N.W.2d 417 (Wis. App. 1985); and by the Restatement (Second) of Torts. Compare 2 Restatement (Second), Torts § 495 with 2 Restatement (Second), Torts § 315. See also 2 Restatement (Second), Torts § 315, comment (b). The reason for distinguishing between passenger conduct which may affect recovery by the plaintiff pas senger, and passenger conduct sought to be used as a basis for liability to other persons, has been variously stated. In Olson v. Ische, supra, 287, the Supreme Court of Minnesota explained: "A passenger has, of course, a legal duty to use care for his own safety, and his contributory negligence will bar or diminish his own claim. He may also have a moral duty owed to others not to encourage the driver to drive when he should not be driving. But to impose a legal duty on the passenger, which makes him liable to others on the highway for what the driver himself chooses to do, seems to us, as a general proposition, inappropriate. Such a rule assumes, incorrectly, that a passenger somehow shares in the management of the motor vehicle, and it further assumes the driver is amenable to the passenger's influence." Likewise, in distinguishing between these two rules of law, the Supreme Court of Wisconsin reasoned: "A person may well be content to trust his own safety to a driver, and yet not be willing to indemnify third persons who may suffer through his negligence. He may say, so far as I am concerned his negligence is my negligence, but I do not agree to become responsible to others for his negligence. To extend the doctrine to that degree would make a guest in a private conveyance an insurer of third persons against the negligence of the driver. Instead of being invested with the liabilities of a guest he would shoulder those of a master." Reiter v. Grober, supra, 495. For a more practical reason, also, we are hesitant to impose liability under the circumstances of this case. If liability to an injured third party attached to the inaction of a passenger, we perceive no justifiable reason not to extend similar liability to third parties, such as witnesses or bystanders, who were or should have been aware of the danger posed by the driver's conduct but failed to take some preventive action. See Martinson v. Cagle, supra; (noting that any observer who knew the driver was intoxicated was in the same position as a passenger having no legal duty to take preventive action). The plaintiffs reliance upon § 322 of the Restatement (Second) of Torts to support a duty to Dennison does not help her argument. Section 322 and the comments thereto make clear that the duty to aid contemplated by that section is predicated upon the actor's "act, or an instrumentality within his control, [which] has inflicted upon another such harm that the other is helpless or in danger." 2 Restatement (Second), Torts § 322, comment (a). The distinguishing feature between this case and a situation where § 322 is applicable, is that here there was simply no act by either defendant passenger which inflicted harm on the plaintiff's decedent, and there is no allegation that the car was within the control of either defendant passenger. Further, the applicability of § 322 to a situation analogous to this case has been rejected elsewhere: "A passenger is under no legal duty to stop and give assistance to a person injured by the car in which he is riding, unless the passenger's conduct caused the accident or there is some special relationship either between the passenger and the driver that would make the passenger jointly responsible with the driver for the accident, or between the passenger and the injured party independently giving rise to such a duty to aid." Cecil v. Hardin, supra. The substitute complaint contains two separate allegations of overcrowding of the car on which the plaintiff relies to bring herself within the scope of § 322. They are that the defendants overcrowded the vehicle and thus placed Dennison in a position of peril in the hatchback part of the car; and that they overcrowded the car by having an unsafe number of persons in it, hampering the driver's post-impact vision and operation of the car, and "thus placed [Dennison] in a position of peril . . . . " The plaintiff's reliance on § 322 is misplaced. Section 322 rests on the premise that the defendant, by conduct or by an instrumentality under his control, inflicted harm on the plaintiff. Under the circumstances presented here, the plaintiff's allegations that the defendants placed Dennison in a perilous position fall short of an allegation that they inflicted harm on him. There is no allegation that the defendants coerced or persuaded Dennison into sitting in an obviously unsafe part of the car, or that they did anything which imperiled him other than their seating arrangement. We simply do not believe that the requirement of § 322 that the defendant "has caused . . . bodily harm to another"; see footnote 8, supra; can legitimately be read to include the allegation that, by their seating arrangement, the defendants placed Dennison in a position of peril. Additionally, we fail to see how to determine which of four passengers in a three-passenger car has caused the overcrowding — the first to enter the car, the last to enter the car, or the passenger who sat in a nonpassenger compartment. With respect to the allegation that the overcrowding of the car placed Dennison in a position of peril because it hampered the driver's vision and operation of the car, the plaintiff conceded in oral argument in this court that this allegation relates only to Dennison's position after having been thrown from the car. Thus, it does not constitute an allegation that the defendants inflicted harm on him. We hold that in the absence of an allegation of facts showing a special relationship between the parties or between the defendant and the driver, or in the absence of an allegation of facts showing that the driver and the defendant were engaged in a joint enterprise, inaction by a defendant passenger does not give rise to liability to a fellow passenger or other third party injured by the driver's conduct. Accordingly, the court properly granted the motions to strike filed by Kosky and Zemke. There is error with respect to the judgment in favor of the defendant Andrew Priest, that judgment is set aside and the case is remanded to be proceeded with according to law. There is no error with respect to the judgment in favor of the defendants Jeff Kosky and Denise Zemke. In this opinion the other judges concurred. A judgment rendered in favor of the named defendant, Lewis Klotz, was vacated on September 29, 1986, pursuant to the parties' settlement agreement. Klotz, therefore, is no longer a party to this appeal. The plaintiffs claim for emotional distress was withdrawn, and forms no issue in this appeal. The plaintiff originally filed an appeal as to the defendant Priest immediately following the judgment in favor of that defendant. That appeal, however, was dismissed by this court for lack of an appealable final judgment under the rule of Kilbride v. Dushkin Publishing Group, Inc., 186 Conn. 718, 724-25, 443 A.2d 922 (1982). Therefore, this appeal properly raises claims of error relating to the rendering of judgment in favor of Priest pursuant to Practice Book § 157, as well as the later rendering of judgment in favor of the other defendants. We note that the Kilbride rule has been modified by amendments to former Practice Book § 3001, now § 4002. "[Practice Book] Sec. 157. —substitute pleading; judgment "Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint has been stricken, and the party whose pleading has been so stricken fails to file a new pleading within that fifteen-day period, the court may upon motion enter judgment against said party on said stricken complaint, counterclaim or cross complaint." Since we find error in the court's rendering of judgment in favor of Priest on the original complaint, the plaintiffs claim of error regarding the denial of her later motion to set aside that judgment is moot. Additionally, the plaintiffs claim of error regarding the court's granting of Priest's motion to strike the original complaint is also not properly before us. The plaintiffs filing of the substitute complaint operated as a waiver of the right to claim error in the granting of the motion to strike the original complaint. Royce v. Westport, 183 Conn. 177, 178-79, 439 A.2d 298 (1981). In her brief, the plaintiff also argues that, in adddition to a duty to take action to prevent harm to a third person, a passenger "may be liable for the consequences of a driver's negligent operation of his motor vehicle, where the guest directs or encourages the negligent act or personally cooperates therein." We need not address the viability of this theory of liability, however, because the complaint alleges no such affirmative conduct on the part of the defendants. Comment (b) to § 315 of 2 Restatement (Second) of Torts, which bears the heading "Distinction between duty to act for another's protection and duty to act for self-protection, "provides an example which pertains directly to the issues argued by the parties in this appeal: "In the absence of either [a special relationship between the actor and the negligent party which imposes a duty upon the actor to control the third person's conduct, or a special relationship between the actor and the injured party which gives to the injured party a right of protection], the actor is not subject to liability if he fails, either intentionally or through inadvertence, to exercise his ability so to control the actions of third persons as to protect another from even the most serious harm. This is true although the actor realizes that he has the ability to control the conduct of a third person, and could do so with only the most trivial of efforts and without any inconvenience to himself. Thus if the actor is riding in a third person's car merely as a guest, he is not subject to liability to another run over by the car even though he knows of the other's danger and knows that the driver is not aware of it, and knows that by a mere word, recalling the driver's attention to the road, he would give the driver an opportunity to stop the car before the other is run over. On the other hand, under the rule stated in § 495, the actor is guilty of contributory negligence if he fails to exercise an ability which he in fact has to control the conduct of any third person, where a reasonable man would realize that the exercise of his control is necessary to his own safety. Thus if the actor, while riding merely as a guest, does not warn the driver of a danger of which he knows and of which he has every reason to believe that the driver is unaware, he becomes guilty of contributory negligence which precludes him from recovery against another driver whose negligent driving is also a cause of a collision in which the actor himself is injured. " (Emphasis added.) "[Restatement (Second) Torts] § 322. duty to aid another harmed by actor's conduct. If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise care to prevent such further harm." The plaintiffs allegations of reckless and wanton misconduct do not require a different result. Where, as here, there is no legal duty to act, the plaintiff cannot create one simply by describing the defendant's conduct in more blameworthy terms.

Dupont, C. J. The plaintiff appeals from the judgment rendered pursuant to a directed verdict for the defendants in this medical malpractice action. She claims that the trial court erred in excluding certain expert medical testimony. The following facts are not in dispute. The plaintiff's decedent, Jerome Sochard, entered the defendant's emergency room suffering from what was diagnosed as a myocardial infarction. Emergency treatment resulted in the stabilization of the patient's condition, after which he was admitted to the hospital's intensive care unit by Walter Lucia, the patient's cardiologist. The patient's condition remained stable until 3:30 a.m. when he experienced irregular heartbeats and a reduced heart rate. The attending nurse informed an intern on duty, and the patient's dosage of a medication was increased which stabilized his condition. Lucia visited the patient the following morning and, after speaking with him for several minutes, concluded that he was in a stable condition. Soon after the doctor left, the patient went into cardiac arrest and died despite efforts at cardiopulmonary resuscitation and the insertion of a pacemaker. The plaintiff brought this action for wrongful death alleging that the defendant hospital, acting through its nurses and interns, failed to monitor the decedent properly and failed to communicate the decedent's difficulties to the attending cardiologist on a regular'basis. It is also alleged that the defendant failed to insert a pacemaker or to monitor the patient in a proper manner prior to cardiac arrest. During the course of the trial, the plaintiff introduced evidence that the defendant failed to observe its duty of care by neglecting to insert a Swan-Ganz catheter at 3:30 a.m., when it became apparent that the patient was susceptible to further cardiac difficulty. The patient's expert witness, Norman Cagin, a physician specializing in cardiology, testified that the failure to employ this diagnostic device made it impossible to determine whether the patient was suffering from hypovolemia, which the plaintiff alleges may have caused the patient's death. The plaintiff's expert witness was then asked the following hypothetical question: "Doctor, do you have an opinion, with reasonable medical probability, that St. Vincent's Hospital, through its failure to use recognized and available diagnostic modalities and techniques, substantially increased the risk of Mr. Sochard's dying?" The defendant's counsel objected to the question for failure of the plaintiff to lay a proper foundation. The defendant's objection focused on the lack of subordinate facts from which the expert witness could form an opinion as to what caused the patient's death, and the absence of any evidence demonstrating that the decedent died from a condition other than a contractile failure of the heart, a condition which neither party alleged was treatable. The plaintiff argued that, had the defendant employed proper testing procedures, it might have been shown that the patient was suffering from hypovolemia, a treatable condition in approximately 80 percent of the cases. The plaintiff claims that the defendant's allegedly negligent conduct precluded her from establishing the cause of the patient's death. The trial court sustained the defendant's objection and disallowed the question because it was not based upon the evidence in the case. The facts assumed in a hypothetical question must have their basis in the evidence on the record. See Engelke v. Wheatley, 148 Conn. 398, 410-11, 171 A.2d 402 (1961); see generally McCormick, Evidence (2d Ed. 1972) § 14. Whether a proper foundation has been laid to support a hypothetical question is an issue of fact for the trial court. Spoto v. Hayward Mfg. Co., 2 Conn. App. 663, 670, 482 A.2d 91 (1984). "A hypothetical question may not be asked of an expert where it is so lacking in material, relevant and essential facts." State v. Gaynor, 182 Conn. 501, 509-10, 438 A.2d 749 (1980). " '[Wjhere the admissibility of evidence depends upon a preliminary question of fact, to be determined by the court, its decision is not to be reversed unless there is clear and manifest error.' Engelke v. Wheatley, [supra, 411]." Spoto v. Hayward Mfg. Co., supra. The plaintiff does not argue on appeal that there was any evidence of a cause of death other than contractile failure. She relies on § 323 (a) of the Restatement (Second) of Torts and argues that once evidence has been introduced that a defendant's negligent act or omission increased the risk of harm to a person, and that harm was in fact sustained, it becomes a question for the jury as to whether that increased risk caused the harm. While this may be a proper interpretation of the Restatement, it does not apply to the facts of the present case because there was no evidence that the patient died from a condition which would have been detected by the use of the Swan-Ganz catheter. There was, therefore, no proof that the increased risk of harm of which the plaintiff complains, namely death due to hypovolemia, was in fact sustained. Although there are uncertainties of proof inherent in some medical malpractice cases which may warrant some relaxation of the quantum of evidence required for the basis of a hypothetical question, there must be some evidence that the allegedly negligent conduct caused the plaintiffs injury. In this case, to allow the jury to find that the defendant's conduct increased the risk of the decedent's death would be to impose liability based on mere speculation and conjecture. See Ardoline v. Keegan, 140 Conn. 552, 558-59, 102 A.2d 352 (1954); Campbell v. Pommier, 5 Conn. App. 29, 32, 496 A.2d 975 (1985). The trial court's finding that there was insufficient evidence to support the proposed hypothetical question was not clearly and manifestly erroneous. The plaintiff's second claim of error is related to her first claim. She argues that the trial court erroneously directed the verdict for the defendant for lack of evidence to prove causation. The plaintiff concedes that the only evidence as to causation was that portion of her expert's testimony which was disallowed by the court. Since we hold that the trial court's prohibition of this testimony was proper, we find that the direction of the defendant's verdict was also proper. See Souper Spud, Inc. v. Aetna Casualty & Surety Co., 5 Conn. App. 579, 581-82, 501 A.2d 1214 (1985). There is no error. In this opinion the other judges concurred. The plaintiff brought this wrongful death action individually and as executrix of the decedent's estate. As used in this opinion, the plaintiff refers to Edythe Sochard individually and as executrix of the estate. This action was commenced against Cardiovascular Associates, P.C., Walter Lucia, M.D., and St. Vincent's Medical Center. A verdict was directed in favor of all three defendants. An appeal was taken but was subsequently withdrawn as to that portion of the judgment relating to Cardiovascular Associates, P.C., and Walter Lucia, M.D. As used in this opinion, the defendant refers to St. Vincent's Medical Center. A myocardial infarction is a "region of dead or dying tissue in the muscle of the heart which is the result of an obstruction to the blood circulation . . . . " Schmidt, Attorney's Dictionary of Medicine. It is disputed whether the intern visited the patient during the night. The patient's attending physician was not called. Hypovolemia is a "condition in which the volume or quantity of blood in the body is below normal." Schmidt, Attorney's Dictionary of Medicine. A contractile failure of the heart was described by Lucia as meaning the inability of the heart to pump due to heart muscle loss. Section 323 sets forth in pertinent part that "[o]ne who undertakes . . . to render services to another . is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm . . . ." Restatement (Second), Torts § 323. Those authorities cited by the plaintiff which impose liability for the deprivation of a "chance" for survival do not compel a different result than we have reached. See Hicks v. United States, 368 F.2d 626 (4th Cir. 1966); James v. United States, 483 F. Sup. 581 (N.D. Cal. 1980); Evers v. Dollinger, 95 N. J. 399, 471 A.2d 405 (1984); Kallenberg v. Beth Israel Hospital, 45 App. Div. 2d 177, 357 N.Y.S.2d 508 (1974); Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981); Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); Herskovits v. Group Health Cooperative, 99 Wash. 2d 609, 664 P.2d 474 (1983); Restatement (Second), Torts § 323 (a). All of the plaintiffs authorities address themselves to situations where the cause in fact of the injui'y; is known.

Per Curiam. The defendant appeals from the judgment of her conviction by the trial court of owning dogs which by their excessive barking caused a nuisance and were a source of annoyance to a sick person residing in the immediate vicinity, in violation of General Statutes § 22-363. The defendant claims on appeal (1) that the trial court misconstrued the statute, and (2) that there was insufficient evidence to support the conviction. When reviewing the judgment of a trial court, our standard of review is the same whether the trier of fact is a judge, a panel of judges or a jury. State v. D'Antuono, 186 Conn. 414, 421, 441 A.2d 846 (1982). "When a verdict is challenged because of insufficient evidence, the issue is whether the [trier] 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. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985), quoting State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980). Our review of the record and briefs establishes that the challenged facts; namely, that the complainant was a sick person residing in the immediate area who suffered from migraine headaches, and who was subjected to annoyance from the excessive barking by the defendant's seven dogs; are supported by the evidence and justify the conviction. The court's conclusions based on those facts are legally and logically correct. From the cumulative effect of this evidence, together with reasonable inferences, the trial court could reasonably have concluded beyond a reasonable doubt that the defendant was guilty of violating General Statutes § 22-363. There is no error. The trial court found that the defendant committed a violation of General Statutes § 22-363 but, being the defendant's first offense, considered it an infraction. The court ordered a sentence of unconditional discharge. General Statutes § 22-363 provides: "No person shall own or harbor a dog or dogs which is or are a nuisance by reason of vicious disposition or excessive barking or other disturbance, or by such barking or other disturbance, is or, are a source of annoyance to any sick person residing in the immediate vicinity. Violation of any provision of this section shall be an infraction for the first offense and such person shall be fined not more than one hundred dollars or imprisoned not more than thirty days or both for each subsequent offense and the court or judge may make such order concerning the restraint or disposal of such dog or dogs as may be deemed necessary."

Arthur H. Healey, J. After a trial to a jury, the defendant was found guilty of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). From the judgment rendered thereon, the defendant appeals and presses three claims of error. He contends that the trial court erred (1) in denying his motion to suppress evidence as to items seized in the warrantless search of his car; (2) in granting the state's motion to obtain nontestimonial evidence from the defendant ; and (3) in refusing to charge the jury on robbery in the second degree as a lesser included offense of robbery in the first degree. The essential circumstances surrounding the case are not in dispute. On October 25, 1978, shortly before 8:30 p.m., a West Haven police officer observed a ear going through a stop sign without stopping in the vicinity of Pepe's Grocery Store in West Haven. Because the police officer was responding to another call, he did not stop the car. He did note, however, that there were two white males in the car, and that the driver of the vehicle was noticeably smaller than the passenger. At approximately 8:30 p.m., a witness standing outside of Pepe's Grocery Store saw a white male emerge from a similar looking car. The male was wearing a ski mask and was armed with a shotgun. The car in which he was a passenger left the area. The armed male entered the store and robbed Guiseppe DePalma of his store receipts and wallet. The robber then fled from the store and ran in the direction of Washington Manor. At the corner of Court Street and Washington Manor, the robber tripped over a wire fence; his shotgun discharged, and he dropped his ski mask, eyeglasses and the victim's wallet. He then ran up Washington Manor. The West Haven police responded to the scene of the robbery within minutes. While cruising in the area, a police officer saw Michael Celso get out of a car parked on Washington Manor, a short distance from the robbery. Celso is a short individual and a person known to the police as actively involved in criminal activity. The vehicle which dropped off the robber was described to the police as being dark in color, of an older vintage, small to medium in size, with a square front, a torn back seat, and a visor down on the passenger's side. The car, which was parked on Washington Manor, and from which Celso alighted, was identified by two eyewitnesses as a car which looked similar to the one involved in the robbery. One of the two witnesses had previously ruled out another car as being the vehicle which dropped off the robber. The car on Washington Manor was in fact dark in color, of an older vintage, similar in size to the one seen at Pepe's, with a torn back seat and a visor down on the passenger's side of the car. After an identification check was made of the parked car, and it was determined that the ear was registered in the defendant's name, the police, at approximately 11:30 p.m., approached the vehicle and observed a police scanner through the window. The ear was then searched. In addition to the scanner, the police found a box of .12 gauge shotgun shells, several knives, and a list of area police department broadcast frequency codes. The defendant was arrested on December 5,1978, by the Stamford police after he was found hiding in a tree house in Stamford. After his arrest, hair samples were taken from the defendant. One of them matched one of those removed from the robber's ski mask, which was recovered by the police where the robber had tripped over the fence. The eyeglasses worn by the robber were also recovered where the robber had tripped and were positively identified as the defendant's. After a jury trial, the defendant was found guilty of robbery in the first degree, and judgment was rendered thereon. The defendant's first claim of error is that his due process rights were violated because of the trial court's refusal to grant the defendant's motion to suppress the evidence of items seized in the search of his ear. He contends that the search of his car violated the fourth amendment's prohibition against unreasonable searches and seizures because (1) the police did not have probable cause to search the car and (2) even if the police did have probable cause, a warrant should have been obtained before the search was conducted because there were no exigent circumstances making it impractical to obtain a warrant. The state claims that both probable cause and exigent circumstances existed. The fourth amendment to the United States constitution, which is applicable to the states through the fourteenth amendment; Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961); guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In most instances, "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment . . . ." Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). "In the ordinary case, therefore, a search of private property must be both reasonable and pursuant to a properly issued search warrant." Arkansas v. Sanders, 442 U.S. 753, 758, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979); see Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Trupiano v. United States, 334 U.S. 699, 705, 68 S. Ct. 1229, 92 L. Ed. 1663 (1948); Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948). Narrowly drawn and well-delineated exceptions to the warrant requirement, however, have been established. See, e.g., Arkansas v. Sanders, supra, 759; Coolidge v. New Hampshire, supra, 454-55; Katz v. United States, supra, 357. These exceptions provide for those situations "where the societal costs of obtaining a warrant, such as danger to law officers or the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate." Arkansas v. Sanders, supra, 759. One of the circumstances in which the constitution does not require a search warrant is where the police, under exigent circumstances, search an auto mobile on the street or highway based upon probable cause to believe that the vehicle contains contraband or evidence pertaining to a crime. See Arkansas v. Sanders, supra, 760; Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419, reh. denied, 400 U.S. 856, 91 S. Ct. 23, 27 L. Ed. 2d 94 (1970); Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925); State v. Tully, 166 Conn. 126, 134-35, 348 A.2d 603 (1974); see also Colorado v. Bannister, 449 U.S. 1, 3, 101 S. Ct. 42, 66 L. Ed. 2d 1 (1980). This exception is grounded on a recognized constitutional difference between searches of and seizures from houses and similar structures and from vehicles. Cady v. Dombrowski, 413 U.S. 433, 442, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973). The United States Supreme Court has noted two essential reasons for the distinction between automobiles and other private property. "First, as the Court repeatedly has recognized, the inherent mobility of automobiles often makes it impracticable to obtain a warrant. See, e.g., United States v. Chadwick, [433 U.S. 1, 12, 97 S. Ct. 2484, 53 L. Ed. 2d 538 (1977)]; Chambers v. Maroney, [supra, 49-50]; Carroll v. United States, supra. In addition, the configuration, use, and regulation of automobiles often may dilute the reasonable expectation of privacy that exists with respect to differently situated property. See Rakas v. Illinois, 439 U.S. 128, 155, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978) (Powell, J., concurring); United States v. Chadwick, supra; South Dakota v. Opperman, 428 U.S. 364, 368, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976); Cardwell v. Lewis, 417 U.S. 583, 590, 94 S. Ct. 2464, 41 L. Ed. 2d 325 (1974) (plurality opinion); Cady v. Dombrowski, [supra, 441-42] (1973); Almeida-Sanchez v. United States, 413 U.S. 266, 279, 93 S. Ct. 2535, 37 L. Ed. 2d 596 (1973) (Powell, J., concurring)." Arkansas v. Sanders, supra, 761. We take up first the defendant's claim that there was no probable cause to search his vehicle. We disagree. All of the circumstances leading up to the search of the car demonstrate that there was probable cause to search the vehicle. The car which dropped off the robber at Pepe's was described as dark in color, of an older vintage, small to medium sized, with a square front, torn back seat, and a visor down on the passenger's side. The parked car on Washington Manor matched this description. Although the parked car could not be positively identified by two witnesses to the crime as the car which had dropped off the defendant, both of the witnesses told the police that the parked car looked like the same vehicle. Also, this car was identified as the one which had previously been seen going through a stop sign without stopping, and from which Michael Celso, a known criminal, was observed alighting shortly after the robbery. The car, unlike any other parked in the area, was parked noticeably away from the curb; the driver's door was partially open, and the driver's window was down. It was located within a short distance of the grocery store, i.e., a "matter of hundreds of yards," on Washington Manor. After committing the robbery, the robber ran in the exact direction where the car was parked. On the basis of these circumstances, we hold there was probable cause to search the vehicle based upon the belief that the vehicle contained evidence pertaining to a crime. We also disagree with the defendant's claim that there were no exigent circumstances to justify the warrantless search of the car. The very term "exigency" commands that the analysis be shaped by the realities of the circumstances presented in a given case. See United States v. Robinson, 533 F.2d 578, 581 (D.C. Cir. 1976). In the present case, not only was the defendant's car inherently mobile, but it was parked on a public street where access was not meaningfully restricted. Cf. Coolidge v. New Hampshire, supra; see Cardwell v. Lewis, supra, 593. The car was parked haphazardly in a poorly lit area of the street at nighttime; the driver's door was partially open, and the driver's window was down. At the time of the search, the robber had not yet been apprehended, and the police had information which indicated that he was carrying a firearm. The robber's conduct in not returning to the car, despite its short distance from the scene of the robbery, indicated that he may have been alerted to police intentions and may have attempted to remove, or have someone else attempt to remove, the car or incriminating evidence from it. See Cardwell v. Lewis, supra, 590, 595. The defendant strenuously contends that the fact that the car was placed under surveillance by the police for several hours after the search indicates that exigent circumstances did not exist. We disagree. The fact that the police placed the car under surveillance after the search in no way lessens the degree of exigency which existed prior to the actual search. To the extent that the police may have placed the car under surveillance before the search, but after probable cause to search arose, we point to language found in Cardwell v. Lewis, supra, where the United States Supreme Court noted: "[W]e know of no case or principle that suggests that the right to search on probable cause and the reasonableness of seizing a ear under exigent circumstances are foreclosed if a warrant was not obtained at the first practicable moment. Exigent circumstances with regard to vehicles are not limited to situations where probable cause is unforeseeable and arises only at the time of arrest. . . . The exigency may arise at any time, and the fact that the police might have obtained a warrant earlier does not negate the possibility of a current situation's necessitating prompt police action." Cardwell v. Lewis, supra, 595-96; see also Chambers v. Maroney, 399 U.S. 42, 50-52, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970). The defendant's second claim is that the trial court erred in granting the state's motion to obtain nontestimonial evidence from the defendant. On January 16, 1979, the state filed a motion to obtain nontestimonial evidence from the defendant, pursuant to Practice Book, 1963, § 2189 (2) (now Practice Book, 1978, § 778 [2]). The motion, as eventually amended by the state, solely sought an examination of the defendant's eyeglasses. The court granted the motion, provided that the defendant would not be deprived of his eyeglasses for longer than a twelve hour period. The defendant urges on various grounds that the court's action deprived him of due process because the state and the court failed to comply with the mandatory requirements of Practice Book, 1963, § 2186 through 2190 (now § 775-779). Section 3060P (e) (3) (formerly § 631A [a] [3]) of the 1978 Practice Book sets forth those items which must be included in the appellant's brief before this court can properly review a claimed error in the ruling in any court or jury case. This court has repeatedly held that in the absence of compliance with this rule, it is impossible for us to consider claimed errors in rulings on evidence. State v. Singleton, 174 Conn. 112, 113-14, 384 A.2d 334 (1977); State v. Roberson, 173 Conn. 97, 101, 376 A.2d 1089 (1977); Long v. Loughlin, 171 Conn. 291, 370 A.2d 925 (1976); Maciejewska v. Lombard Bros., Inc., 171 Conn. 35, 37-38, 368 A.2d 206 (1976); Tierney v. American Urban Corporation, 170 Conn. 243, 251-52, 365 A.2d 1153 (1976). "In the absence of compliance with that Practice Book rule, we have no way of reviewing the trial court's ruling." State v. Roberson, supra, 101. The defendant has not complied with this rule. Thus, we cannot review the defendant's second claim. The defendant's final claim, that the trial court erred in refusing to charge the jury on robbery in the second degree as a lesser included offense of robbery in the first degree, merits little discussion. The defendant was tried and convicted of violating General Statutes § 53a-134 (a) (4) which provides: "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: . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . ." The defendant contends that the court erred in refusing to charge, as a lesser included offense, General Statutes § 53a-135 (a) (2), which states: "A person is guilty of robbery in the second degree when he commits robbery and . (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument." It is clear that the essential difference between §4 53a-134 (a) (4) and 53a-135 (a) (2) is the type of weapon used. The former is limited to firearms; the latter includes firearms but is not limited to them. We have previously stated that a defendant is entitled to an instruction on a lesser offense if, and Only if, the following conditions are met: "(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) the evidence, introduced by either the state or the defendant, or by a combination of their proofs, justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innnocent of the greater offense but guilty of the lesser." State v. Tinsley, 181 Conn. 388, 396-97, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed. 2d 811 (1981); State v. Whistnant, 179 Conn. 576, 579-80, 427 A.2d 414 (1980). A failure to meet all four of these conditions justifies a refusal to charge on the lesser offense. Since the defendant points to no evidence introduced by either the state or himself to demonstrate that he was armed with anything but a firearm, and since the issue of what type of weapon the defendant carried was not sufficiently in dispute to permit the jury to find the defendant innocent of the greater offense but guilty of the lesser, we conclude that the trial court did not commit error in refusing to charge on robbery in the second degree as defined in General Statutes § 53a-135 (a) (2). There is no error. In this opinion the other judges concurred. General Statutes § 53a-134 (a) (4) provides: "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: . . . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from whieh a shot could be discharged." Practice Book, 1978, § 3060F provides: "The appellant's brief shall contain the following: . . . (c) The argument, divided under appropriate headings into as many parts as there are points to be presented, with appropriate references to the statement of facts or to the page or pages of the reeord or transcript. . (3) When error is claimed in any other ruling in a court or jury case, the brief shall include, where appropriate: the pertinent motion or pleading, if it does not appear in the printed reeord; the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; the ruling; and any exception. When the basis of the ruling cannot be understood without a knowledge of the evidence or proceeding which preceded or followed the ruling, a brief narrative or verbatim statement of the evidence or proceeding should be made. A verbatim excerpt from the transcript should not be used if a narrative statement will suffice. When the same ruling is repeated, the brief should contain only a single ruling unless the other rulings are further illustrative of the rule which determined the action of the trial court or establish the materiality or harmfulness of the error claimed. The statement of rulings in the brief shall include appropriate references to the page or pages of the transcript." General Statutes § 53a-3 (6) defines "deadly weapon" as ". . . any weapon, whether loaded or unloaded, from which a shot may be discharged, or a switchblade knife, gravity knife, billy, black-jack, bludgeon, or metal knuckles." "Dangerous instrument," as defined in General Statutes § 53a-3 (7), "means any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury, and includes a 'vehicle' as that term is defined in this section."

Shea, J. After a jury trial, the defendant, Bobby Lee Rawls, was convicted of two counts of possession of narcotics in violation of General Statutes § 19-481 (a). The defendant was sentenced to seven years imprisonment on one count, and to a consecutive sentence of seven years on the other count with execution suspended after one year, making a total effective sentence of fourteen years, suspended after eight, with five years probation. The court, Callahan, J-, subsequently modified the sentences to run concurrently. From this judgment, the defendant appeals claiming (1) that he was denied the right to confront the witnesses against him as to the analysis of the drugs, and (2) that multiple convictions for the simultaneous possession of cocaine and heroin violated his rights under the double jeopardy clause of the United States con stitution. We are persuaded only by the double jeopardy claim. On August 9,1981, at approximately 3:30 a.m., members of the Bridgeport police department conducted a raid at an after hours club. While in the club, a police detective observed the defendant place a black pouch on the bar and begin to walk toward an exit. The defendant was then stopped and asked to return to the bar where he had left the pouch. The detective inspected the bag and found a yellow spoon with a white powder residue, two glassine envelopes, a plastic bag and a film container all of which held a white powder substance. The defendant was arrested for possession of narcotics. At trial, the state offered Charles Reading, a state toxicologist, to testify as to the nature of the substances that were contained in the black pouch. Reading was qualified as an expert in the field of toxicology and described the testing procedures used to determine the contents of the pouch. On the basis of the test results, he concluded that the residue on the spoon and the substances in the plastic bag and in the film container were cocaine, and that the powder in one of the glassine envelopes was heroin. I The defendant claims, for the first time on appeal, that he was denied the right to confront witnesses against him as guaranteed by the sixth and fourteenth amendments to the United States constitution and arti cle first, § 8, of the Connecticut constitution. The defendant's claim relates to the testimony of Reading concerning the testing procedures used upon the substances in the black pouch. He argues that, because Reading did not perform the actual tests on the substances and did not provide the court with adequate indicia of reliability for his statements, his testimony consisted of inadmissible hearsay evidence which deprived the defendant of his right to confront the witnesses against him. We do not agree because the defendant, by his failure timely to raise such an objection at trial, waived his confrontational rights. At trial, after Reading testified that the contents of the bag were indeed narcotics, the state concluded its questioning. At no time during the direct examination did the defense counsel object to Reading's testimony. Defense counsel initiated cross-examination by confirming that Reading did not perform the tests himself. At that point, the trial court asked the state's attorney if he intended to offer the toxicological report into evidence. The state's attorney responded, "I had intended to offer it to [sic] the last witness." After defense counsel concluded cross-examination, the state rested its case. After a brief recess, the defendant also rested. At the close of the evidence, the defendant for the first time objected to Reading's testimony by way of his motion for judgment of acquittal. Claiming that the "whole evidence of the drugs should go out," he objected to the evidence on hearsay grounds. Defense counsel recognized that he had failed to object during the examination of Reading, but explained the omission by his misunderstanding of the statement of the state's attorney that he intended to introduce the report through the "last" witness. Defense counsel, as well as the trial court, interpreted the statement to mean that the report would be offered through another witness. Despite this misinterpretation, the court denied the defendant's motion. Even if it were assumed that the testimony in question was hearsay, the admission of hearsay evidence does not necessarily violate the confrontation clause. In California v. Green, 399 U.S. 149, 155-56, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970), the United States Supreme Court noted that "[wjhile it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. . . . Merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied." See note, "Confrontation and the Hearsay Rule," 75 Yale L.J. 1434, 1436 (1966); State v. Brigandi, 186 Conn. 521, 531, 442 A.2d 927 (1982); State v. Cosgrove, 181 Conn. 562, 577, 436 A.2d 33 (1980); McCormick, Evidence (3d Ed. 1984) § 252. In State v. Cosgrove, supra, 578, we declared that where hearsay evidence is offered, the proper focus of the court's concern is whether there are adequate "indicia of reliability" to justify placing such evidence before the jury. See Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S. Ct. 2308, 33 L. Ed. 2d 293 (1972); Dutton v. Evans, 400 U.S. 74, 81, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970). Further, we noted that any such hearsay must " 'afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement.' " State v. Cosgrove, supra, 571; California v. Green, supra, 161. We concluded that the admission of a toxicological report, prepared in the regular course of laboratory business, containing statements by a testing chemist who fails to testify, does not violate the defendant's right to confront and cross-examine the witnesses against him, provided that the report is introduced through a witness who can furnish a basis for its reliability. The gravamen of the defendant's claim is not that the failure to call the chemists who actually performed the tests rendered Reading's testimony inadmissible or denied the defendant his right to confront the witnesses against him. The defendant recognizes that Cosgrove makes such an argument untenable. He argues, rather, that his confrontational rights were violated because Reading's testimony did not establish "adequate indicia of reliability," as is necessary for admission under Cosgrove. He cited the state's failure to mention the names of the testing chemists and to prove that Reading supervised the testing chemists in analyzing the substances seized from the defendant, two components of reliability that were present in Cosgrove. The defendant does not contend that the state had to call further witnesses against him. He argues merely that the state's ambiguous statement induced him prematurely to terminate his cross-examination of Reading, in the mistaken belief that another witness would provide the needed assurances of reliability. Throughout the examination of Reading, the defendant never objected to the testimony as to the narcotic content of the substances. As he claims, the defendant may have presumed that the subsequent admission of the toxicological report, through a witness who would provide the necessary foundation and assurances of reliability, would render any hearsay objection ineffective under the rule articulated in Cosgrove. See State v. King, 187 Conn. 292, 309, 445 A.2d 901 (1982); State v. Reardon, 172 Conn. 593, 599, 376 A.2d 65 (1977). However, the mere fact that Reading's testimony might have been inadmissible hearsay does not inexorably lead to the conclusion that the defendant's confrontational rights were violated. The primary interest secured by confrontation is "the right of cross-examination." Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); State v. Randolph, 190 Conn. 576, 591, 462 A.2d 1011 (1983). The defendant's right to cross-examine Reading was not restricted. In fact, the defendant elicited from this witness that he did not actually test the drugs. The jury could reasonably have drawn inferences, unfavorable to the state, from that testimony. The defendant did not inquire as to who actually performed the tests, nor whether the tests were performed according to standard toxicological practice. Further, he chose not to cross-examine Reading extensively. Therefore, the essence of the defendant's claim is that the state failed to provide the necessary assurances of reliability for Reading's testimony, as Cosgrove requires. Because of this alleged deficiency, the defendant should have objected to the state's initial questioning of Reading on the narcotic content of the substances. A timely objection based on the state's failure to lay a proper foundation for his opinion should have been made before Reading answered the question. See Hackenson v. Waterbury, 124 Conn. 679, 683, 2 A.2d 215 (1938); Snow v. Howard Motors, Inc., 3 Conn. Cir. Ct. 702, 706-707, 223 A.2d 409 (1966). Because the defendant failed to raise a timely objection, the trial court was never alerted as to the constitutional problems resulting from the admission of the testimony. Had the defendant objected, the state might have been able to establish the necessary assurances of reliability to dispense with the requirement of confrontation. See United States v. Helmel, 769 F.2d 1306, 1317 (8th Cir. 1985); United States v. Gibbs, 739 F.2d 838, 847 (3d Cir. 1984) (en banc), cert. denied, 469 U.S. 1106, 105 S. Ct. 779, 83 L. Ed. 2d 774 (1985). The lack of evidence on the record as to the assurances of reliability was directly traceable to the defendant's failure seasonably to object. United States v. Gibbs, supra, 848. The defendant also could have requested a voir dire examination of Reading in order to determine whether he could provide the necessary assurances of reliability. Because the defendant failed to invoke his right to such an inquiry or to make a timely objection, Reading's testimony was properly before the jury. "Where hearsay evidence is admitted without objection, such evidence may be given such weight as the trier of fact deems'that it is worth." State v. Boyd, 178 Conn. 600, 604, 424 A.2d 279 (1979); Cutlip v. Connecticut Motor Vehicles Commissioner, 168 Conn. 94, 98, 357 A.2d 918 (1975); Pluhowsky v. New Haven, 151 Conn. 337, 343, 197 A.2d 645 (1964). Although he might have been induced to curtail his cross-examination of Reading because of his reliance on the state's ambiguous statement, the defendant should have moved to strike the testimony when the state closed its case, as it was then clear that there would be no additional witnesses called. See Kowalewski v. Mutual Loan Co., 159 Conn. 76, 78, 266 A.2d 379 (1970); State v. Perelli, 125 Conn. 321, 327, 5 A.2d 705 (1939); Snow v. Howard Motors, Inc., supra, 707. Had the defendant wanted to challenge the toxicological report, his confrontational rights "were adequately protected by the available procedures for pretrial discovery, Practice Book, 1978, § 741, 745, and subpoenaing of the witness[es] during trial. See, e.g., People v. Gower, 42 N.Y.2d 117, 121, 366 N.E.2d 69 [397 N.Y.S.2d 368 (1977)]; State v. Walker, 53 Ohio St. 2d 192, 197, 374 N.E.2d 132 [1978]." State v. Cosgrove, supra, 581-82. The admission of Reading's testimony did not deprive the defendant of his right to confront the individuals who actually performed the tests. The defendant, at the close of the state's case, could have moved to strike the expert's testimony on hearsay or confrontational grounds or could have sought a continuance to allow an opportunity to subpoena the individuals who actually performed the tests. Because he failed to avail himself of opportunities to exercise his confrontational rights even after his initial misunderstanding concerning the statement of the prosecutor had been dispelled, the defendant cannot complain that he was deprived of the right to confront the witnesses against him. II The defendant next argues that the trial court, by convicting him of two counts of possession of narcotics for the simultaneous possession of heroin and cocaine, punished him twice for the same offense and thereby violated the double jeopardy provision of the United States constitution. The defendant was charged and convicted under General Statutes § 19-481 (a), which imposes liability on "[a]ny person who possesses or has under his control any quantity of any narcotic substance . . . ." The express language of the statute does not address whether or not a person can be punished for multiple violations based on the simultaneous possession of different narcotic substances. The double jeopardy clause of the fifth amendment to the federal constitution protects not only against multiple trials but also against multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969); State v. Wright, 197 Conn. 588, 592-93, 500 A.2d 547 (1985); State v. Sharpe, 195 Conn. 651, 654, 491 A.2d 345 (1985). "With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the . . . court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983). The issue, though essentially constitutional, becomes one of statutory construction. State v. Madera, 198 Conn. 92, 109, 503 A.2d 136 (1985). " Tf a person steals four horses from the barn of another, all being of different color, it would not be competent to charge the thief with four different larcenies when the horses were all taken at the same time and place.' Braden v. United States, 270 F. 441, 443-44 (8th Cir. [1920]). 'Merely because one element of a single criminal act embraces two persons or things, a prosecutor may not carve out two offenses by charging the several elements of the single offense in different counts and designating only one of the persons or things in one count and designating only the other person or thing in the other count.' Robinson v. United States, 143 F.2d 276, 277 (10th Cir. [1944])." State v. Cimino, 33 Conn. Sup. 680, 684, 366 A.2d 1168 (1976). The proper double jeopardy inquiry when a defendant is convicted of multiple violations of the same statutory provision is whether the legislature intended to punish the individual acts separately or to punish only the course of action which they constitute. Albernaz v. United States, 450 U.S. 333, 337, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981); Whalen v. United States, 445 U.S. 684, 691, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980). Therefore, the question before us becomes whether the legislature in enacting § 19-481 (a) intended to authorize dual convictions for the simultaneous possession of cocaine and heroin. Neither the language of § 19-481 (a) nor its legislative history indicates an intention to authorize multiple punishment for the simultaneous possession of more than one narcotic. The state, at argument, disclaimed the notion that separate packages of the same narcotic substance found in the possession of a person could be the basis for separate punishments under § 19-481 (a). The statute provides no suggestion of a contrary result for the simultaneous possession of separate packages of different narcotics. As the state conceded at argument, the statute at issue here is ambiguous in respect to whether separate punishments were intended for the possession of more than one kind of narcotic substance. It is a fundamental tenet of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. See Rewis v. United States, 401 U.S. 808, 812, 91 S. Ct. 1056, 28 L. Ed. 2d 493 (1971); Bell v. United States, 349 U.S. 81, 83, 75 S. Ct. 620, 99 L. Ed. 905 (1955); United States v. Noe, 634 F.2d 860, 862 (5th Cir. 1981); State v. Dupree, 196 Conn. 655, 660, 495 A.2d 691 (1985). The "touchstone" of this rule of lenity is "statutory ambiguity." Bifulco v. United States, 447 U.S. 381, 387, 100 S. Ct. 2247, 65 L. Ed. 2d 205 (1980). Unless a clear intention to fix separate penalties for each narcotic substance involved is expressed, the issue should be resolved in favor of lenity and against turning a single transaction into multiple offenses. Ladner v. United States, 358 U.S. 169, 178, 79 S. Ct. 209, 3 L. Ed. 2d 199 (1958); Bell v. United States, supra, 84. The defendant's conviction and sentence for possession of heroin, in the absence of a clearly discernible legislative intent for multiple convictions under § 19-481 (a), is barred by the double jeopardy clause. There is error in the judgment on the additional possession of narcotics count, the judgment on that count is set aside and the case is remanded for further proceedings in accordance with this opinion. In this opinion Peters, C. J., and Kline, J., concurred. In 1983, the legislature transferred General Statutes § 19-481 (a) to § 21a-279. Public Acts 1983, No. 83-141. "[General Statutes] Sec. 21a-279. (Formerly Sec. 19-481). penalty for illegal possession, substitution of medical treatment for criminal sanctions, (a) Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years, or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years, or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned." The defendant was also charged, in count one of the information, with possession of narcotics with intent to sell in violation of General Statutes § 19-480a, now § 21a-278. The trial court dismissed this count pursuant to the defendant's motion for judgment of acquittal. The two possession of narcotics charges were counts two and three of the information. Although the Connecticut constitution contains no specific double jeopardy provision, the due process guarantees of article first, § 8, have been held to include such a protection. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962). Although it was not raised at trial, we will address this claim because "the Sixth Amendment's right of an accused to confront the witnesses against him is . a fundamental right and is made obligatory on the States by the Fourteenth Amendment." Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); State v. King, 187 Conn. 292, 309, 445 A.2d 901 (1982); State v. Reardon, 172 Conn. 593, 376 A.2d 65 (1977); see State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). Because of the defendant's failure timely to object it is not necessary to address the issue of whether or not the admission of Reading's testimony, without the accompanying toxicological report, was inadmissible hearsay. See Practice Book § 288, 3063; State v. Sinclair, 197 Conn. 574, 500 A.2d 539 (1985); Keating v. Glass Container Corporation, 197 Conn. 428, 497 A.2d 763 (1985). The definition of "narcotic substance" in General Statutes § 19-443 (30), now § 21a-240 (30), expressly includes both cocaine and heroin. In Braden v. United States, 270 F. 441, 443-44 (8th Cir. 1920), a statute proscribing possession of "any of the aforesaid drugs" was held not to authorize separate sentences for each of four narcotic substances simultaneously possessed by the defendant.

Callahan, J. This is an appeal by the plaintiffs, Joseph and Rhonda Nye, from the quashing of a habeas corpus petition. On appeal, the plaintiffs claim that the trial court erred in: (1) quashing the plaintiffs' petition on the ground that the plaintiffs, as foster parents, lacked standing to maintain such an action; and (2) refusing immediately to appoint counsel for the minor child notwithstanding the alleged need for and the availability of competent counsel. We find no error. A statement of the background in this case is necessary to place the issues in proper context. The minor child, Jennifer, whose custody is in dispute, was born June 9, 1984. When Jennifer was about two months old, the department of children and youth services (hereinafter DCYS) placed her with the Nyes for foster care. She resided continuously with them from August 7, 1984, until the conclusion of the court proceedings on March 22,1985. It is unclear whether the Nyes signed the standard agreement for foster care used by DCYS before Jennifer was placed with them. The Nyes, however, are familiar with the provisions of such a contract and they acknowledge that generally a contract is signed by the parties to a foster care placement. The standard agreement contains the statement that the child is placed with the foster parents "on a temporary care basis only and it is clearly understood that said child is not placed with [the foster par ents] for either adoption or long-term foster care." On December 11,1984, the parental rights of the natural parents were terminated by consent of the natural parents and the defendant commissioner of DCYS was appointed as the statutory parent. See General Statutes § 45-61f. In February, 1985, DCYS informed the Nyes that Jennifer was to be taken from their foster care because another couple had been selected by DCYS as adoptive parents for Jennifer. Neither the Nyes nor the adoptive parents have any blood relationship to Jennifer. On March 6, 1985, the Nyes filed a writ of habeas corpus, together with a complaint and an application for a temporary injunction, concerning the proposed removal of Jennifer from their foster care. At that time, the trial court granted the temporary injunction enjoining DCYS from removing Jennifer. In March, 1985, the trial court declined to act on the Nyes' motion for appointment of counsel for Jennifer and granted the commissioner of DCYS' motion to quash the habeas corpus petition, concluding that the court had no jurisdiction because the Nyes lacked standing to petition for habeas corpus relief. The trial court also dissolved the temporary injunction. The Nyes' request for a stay of execution of the order quashing the habeas corpus petition and dissolving the temporary injunction pending appeal was denied. This ruling returned physical custody of Jennifer to DCYS as the statutory parent. DCYS removed Jennifer from the care and physical custody of the Nyes and placed her with the adoptive parents. This action for a writ of habeas corpus was brought pursuant to General Statutes § 52-466. A habeas corpus action has long been recognized in Connecticut as the proper procedure to determine the custody of a minor child. Kearney v. State, 174 Conn. 244, 249, 386 A.2d 223 (1978); Adamsen v. Adamsen, 151 Conn. 172, 178, 195 A.2d 418 (1963); 2 Stephenson, Conn. Civ. Proc. § 259. In such an action, the paramount issue is the best interests of the child. McGaffin v. Roberts, 193 Conn. 393, 403, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985). This court is concerned with the best interests of Jennifer. That concern does not mean, however, that we can ignore the necessity that the Nyes have standing to bring a petition for a writ of habeas corpus. Standing focuses on whether a party is the proper party to request adjudication of the issues, rather than on the substantive rights of the aggrieved parties. Maloney v. Pac, 183 Conn. 313, 320, 439 A.2d 349 (1981); Shaskan v. Waltham Industries Corporation, 168 Conn. 43, 49, 357 A.2d 472 (1975). It has long been recognized that a person is not "entitled to set the machinery of the courts in operation except to obtain redress for an injury he has suffered or to prevent an injury he may suffer, either in an individual or a representative capacity." Bassett v. Desmond, 140 Conn. 426, 430, 101 A.2d 294 (1953). Standing is aptly described as "a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests . . . ."Maloney v. Pac, supra. I In the present case, the plaintiffs assert two grounds in support of their claim of standing. They first claim that they have standing as foster parents to assert their own interest in the maintenance of their family relationship with Jennifer. Secondly, the plaintiffs argue that they have standing derivatively as foster parents to assert the interests of their foster child because of the nature of their relationship with the child and because to deny them standing effectively eliminates the child's ability to assert her own interest. A We first address the plaintiffs' claim of standing as foster parents to assert their own interest. The plaintiffs argue that their interest in the protection of their foster parent relationship with Jennifer is sufficient to support their claim of standing. They assert that this court in Kearney v. State, 174 Conn. 244, 386 A.2d 223 (1978), implicitly held that foster parents have standing because there foster parents were permitted to intervene in a custody suit involving their foster child. Kearney, however, can be distinguished from the present case because the initial proceeding in that case was not a proceeding on a habeas corpus petition. Instead it was an action for an injunction brought by adoptive parents against DCYS on the basis of a contract to adopt. A writ of habeas corpus was sought only in a counterclaim brought by the foster parents. The foster parents in Kearney did not institute the suit but were merely permitted to intervene as defendants. In the present case, the Nyes are bringing the custody of Jennifer into question by initiating the action rather than by simply intervening in a preexisting lawsuit. Furthermore, even if the differences between the two cases are ignored, the court in Kearney never addressed the issue of standing and specifically never considered whether foster parents have standing to bring a habeas corpus proceeding. We therefore do not find Kearney controlling on this issue. In Doe v. Doe, 163 Conn. 340, 345, 307 A.2d 166 (1972), this court held that only parents or legal guardians of a child have standing to seek habeas corpus relief. In that case, a man who had supported and lived with a child and her mother for ten years brought a habeas corpus action to determine the right of custody and to secure visitation with a minor child. On appeal he challenged only that part of the judgment relating to visitation rights. The court denied him standing because he was not the child's parent or legal guardian. Doe v. Doe, supra. Standing was denied in that case even though the plaintiff had extensive contact and emotional ties with the child. Doe and the present case are similar because in both cases the claim of standing was based on an emotional relationship with the child rather than on a biological or legal guardian relationship. Foster families differ from biological families in that they have their source in state law and contractual arrangements. Smith v. O.F.F.E.R., 431 U.S. 816, 845, 97 S. Ct. 2094, 53 L. Ed. 2d 14 (1977). Foster families do not have the same rights as biological families or adoptive families. Rather, the expectations and entitlements of foster families can be limited by the state. Smith v. O.F.F.E.R., supra; see Drummond v. Fulton County Department of Family & Children's Services, 563 F.2d 1200, 1207 (5th Cir. 1977). Biological and adoptive families have a liberty interest in the integrity of their family unit which is part of the fourteenth amendment's right to familial privacy. Smith v. O.F.F.E.R., supra, 842. Foster care arrangements of the nature and duration considered in the present case do not have this constitutionally protected liberty interest. Kyees v. County Department of Public Welfare, 600 F.2d 693, 698-99 (7th Cir. 1979); Drummond v. Fulton County Department of Family & Children's Services, supra. Further, the plaintiffs had no basis for a justifiable expectation that their relationship with Jennifer would be anything but temporary. See Drummond v. Fulton County Department of Family & Children's Services, supra. We hold, therefore, that under these circumstances the Nyes do not have standing as foster parents to assert their own interest in the maintenance of their family relationship with Jennifer. They do not have a liberty interest and their emotional relationship with the child, which was acquired through the temporary foster placement, is too tenuous a basis to afford standing to institute a habeas corpus proceeding against the child's statutory parent and legal guardian. B Next, we address the Nyes' claim of standing based on their assertion of Jennifer's interests. The Nyes argue that Jennifer has an interest in both the continuity of care she receives and in a stable home environment, which should be given judicial protection. The Nyes also argue that they should be the ones to assert Jennifer's interests because she does not have any natural parents to represent her and only they as foster parents "are both capable of and willing to assert [Jennifer's] interests . . . We do not share the plaintiffs' view. As the "statutory parent" of Jennifer, DCYS provides for her welfare, which includes acting in her best interests. See General Statutes § 17-410 et seq., 45-61h. The commissioner of DCYS has been given authority by the legislature to determine custody of children committed to his care. See General Statutes § 45-61 et seq., 17-32 et seq. It is clear that the legislature intended that DCYS safeguard Jennifer's best interests regarding custody. The Nyes, therefore, are incorrect in saying that they are the only ones able to assert and protect Jennifer's best interests. Furthermore, although the plaintiffs argue that they will assert Jennifer's interests, the plaintiffs' interests may well be in conflict with Jennifer's interests. "[I]t is by no means obvious that foster parents and foster children have the same interest in a continuation of their relationship. When the child leaves the foster family, it is because the agency with custody of him has determined that his interests will be better served by a new home, either with his natural parents, adoptive parents, or a different foster family. Any assessment of the child's alleged deprivation must take into account not only what he has lost, but what he has received in return." Smith v. O.F.F.E.R., supra, 857 n.1 (Stewart, J., concurring). Therefore, the foster parents are not an appropriate neutral party to assert the interests of their foster child in a habeas corpus action. Accordingly, the Nyes do not have standing to assert the interests of Jennifer. We find no error in the dismissal of the plaintiffs' habeas corpus action because the plaintiffs lacked standing. To hold otherwise would open the door to any interested individual to litigate what is in the best inter ests of a foster child who is a candidate for adoption. It would also enable foster parents to delay the adoption of a child whenever they disagree with a placement decision of DCYS. This would undermine the adoption process in Connecticut by interfering with the performance of duties entrusted to DCYS by the legislature. See General Statutes § 45-61h, 45-6li, 45-63. This court is concerned with maintaining the integrity of the statutory scheme of foster care and adoption mandated by the legislature and therefore declines to grant standing to foster parents in the position of the plaintiffs to institute a habeas corpus action. II The Nyes' second claim is that the trial court erred in refusing to appoint counsel for Jennifer immediately. They assert that independent counsel for minor children should be appointed in all contested custody proceedings and that such appointment is mandatory unless there are countervailing considerations. This court recognizes the importance generally of appointing counsel for minor children in custody proceedings. See Yontef v. Yontef 185 Conn. 275, 284, 440 A.2d 899 (1981); Kearney v. State, supra, 251. It is not, however, mandatory that counsel be appointed in every situation. "Generally, appointment of counsel for minor children rests within the discretion of the court." Kearney v. State, supra; see General Statutes § 46b-54; Ridgeway v. Ridgeway, 180 Conn. 533, 540, 429 A.2d 801 (1980). The proceedings for which counsel would have been appointed in the present case were jurisdictional. As such, the trial court said that it was not "necessary or appropriate to appoint counsel for the minor child at this stage in the proceedings." The trial court's decision not to appoint counsel for Jennifer in the jurisdictional proceedings was well within the court's proper exercise of discretion. The trial court therefore did not err in refusing to appoint counsel for Jennifer immediately. We find no error. In this opinion the other judges concurred. "[General Statutes] Sec. 52-466. application foe writ of habeas corpus. SERVICE, return, (a) An application for a writ of habeas corpus shall be made to the superior court or to a judge thereof for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of his liberty. "(b) The application shall be verified by the affidavit of the applicant for the writ alleging that he truly believes that the person on whose account the writ is sought is illegally confined or deprived of his liberty. "(c) The writ shall be directed to some proper officer to serve and return, who shall serve the same by putting a true and attested copy of it into the hands of the person who has the custody of the body of the person who is directed to be presented upon the writ. If the officer fails to make immediate return of the writ, with his actions thereon, he shall pay fifty dollars to the person so held in custody. "(d) Any judge of the superior court to whom an application for a writ of habeas corpus is made may make the writ returnable before any other judge of the court, the consent of the other judge being first obtained; and the other judge shall thereupon proceed with the matter with the same authority as though the application had been originally presented to him. ' '(e) If the application is made to a judge, the judge may certify the proceedings into court and the case shall thereupon be entered upon the docket and proceeded with as though the application had originally been made to the court." It has been reaffirmed by the United States Supreme Court that "freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974).

Parskey, J. After a jury trial the defendant was convicted of murdering William Earl Gilbert. On appeal the defendant seeks a reversal based on (1) the insufficiency of the evidence, (2) two rulings by the court declaring two state's witnesses to be hostile witnesses, (3) a ruling on evidence, (4) the defendant's failure to receive a fair trial because of the cumulative effect of ineffective assistance of counsel and prejudicial comments by the prosecutor, (5) improper comments on the evidence by the court, and (6) an error in the court's charge to the jury. To determine whether the evidence is sufficient to support a jury verdict of guilty, we review the evidence presented at trial and construe it in the manner most favorable to sustaining the verdict. State v. Chetcuti, 173 Conn. 165, 172, 377 A.2d 263 (1977). The issue before us is whether the jury could have reasonably concluded, from the facts established and the reasonable inferences drawn therefrom, that the evidence was sufficient to justify a verdict of guilty beyond a reasonable doubt. State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978). Prom the evidence presented at trial the jury could reasonably have found the following: The victim's body had been found in the West Bock Park area of Hamden at approximately 10:30-ll :00 p.m. on November 4, 1973. The time of death was between 9 and 10 p.m.; the cause, destruction of the spinal cord caused by a bullet entering the victim's back. A witness who lived in the vicinity heard six shots between 9:05 and 9:10 p.m. Three spent .44 magnum shells and a spent .44 magnum copper jacket hollow point bullet were found at the scene; another bullet was found lodged in a nearby tree. Both bullets were fired from the same gun, a .44 magnum Buger rifle. For a number of years prior to the shooting, the defendant was aware that his wife, Louise Harris, and William Gilbert were having an affair. This engendered hostility between the defendant and Gilbert which was manifested in 1971 when Gilbert shot and wounded the defendant after the defendant entered Gilbert's apartment with a starter's pistol while Gilbert and the defendant's wife were in the bedroom. After this incident the defendant and his wife separated for about a year. In February or March of 1973, the defendant told Ernest Tarducci, the son of the defendant's deceased employer, that he had a .44 magnum rifle. The next day the defendant brought some .44 magnum ammunition in to work to show Tarducci, who owned a .44 magnum pistol. These bullets fit both a .44 rifle and a .44 magnum pistol. A month later Tarducci saw the defendant remove a small rifle, possibly a Buger semiautomatic .44 magnum, from a truck. At another time the defendant showed his stepson a rifle which looked like a .44 magnum and which the stepson assumed was a .44 magnum. The defendant also had about a half case of .44 magnum bullets. On the morning of November 4, 1973, Lonise Harris returned home with scratches on her hand that she received while fighting with Gilbert. She and the defendant argued about her continuing to see Gilbert. Gilbert had an 8 p.m. appointment to meet "Louise" on November 4, 1973. The spot in West Rock Park where Gilbert's body was found was his favorite place to take Louise Harris. The defendant went to a poolroom sometime between 8:30 and 9 p.m. to attempt to buy liquor. The 8.8 mile trip from that poolroom to the place where Gilbert was found would take about nineteen minutes by ear. Approximately six hours after Gilbert was shot two members of the Hamden police department and one member of the New Haven police department went to Arthur Harris' residence at 29 Level Street in New Haven because a telephone bill made out to Louise Rodgers, also known as Louise Harris, at 29 Level Street was found in Gilbert's wallet. At that time they questioned the defendant, but conducted no search of the premises. A search of the Harris apartment was conducted with the defendant's consent on November 7, 1973. That search yielded a .44 magnum bullet with a lead hollow head that had been chambered in the same gun that had fired the three shells found near Gilbert's body. This bullet resembled the other .44 magnum bullets which the defendant had and was also, as far as could be determined, the same as the bullets found at the scene of the crime. There was abundant evidence presented in this case regarding the defendant's motive for killing Gilbert. While evidence of motive does not establish an element of the crime charged; see State v. Annunziato, 169 Conn. 517, 530, 363 A.2d 1011 (1975); such evidence is both desirable and important. See State v. Doucette, 147 Conn. 95, 103, 157 A.2d 487 (1959) (overruled on other grounds in State v. Tillman, 152 Conn. 15, 20, 202 A.2d 494 [1964]). It strengthens the state's case when an adequate motive can be shown. State v. Hoyeson, 154 Conn. 302, 307, 224 A.2d 735 (1966). Evidence tending to show the existence or nonexistence of motive often forms an important factor in the inquiry as to the guilt or innocence of the defendant. State v. Rathbun, 74 Conn. 524, 529, 51 A. 540 (1902). This factor is to be weighed by the jury along with the other evidence in the case. State v. Annunziato, supra. The role motive plays in any particular case necessarily varies with the strength of the other evidence in the case. "The other evidence may be such as to justify a conviction without any motive being shown. It may be so weak that without a disclosed motive the guilt of the accused would be clouded by a reasonable doubt." State v. Rathbun, supra, 529-30. Aside from evidence of motive, there was evidence that the defendant had access to a .44 magnum rifle. See State v. Villafane, 171 Conn. 644, 675, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977). A live round of ammunition which was found in the defendant's possession had been chambered in the weapon most likely used to kill Gilbert. That Gilbert was shot in the back lends support to the conclusion that the shooting was intentional. See State v. Bzdyra, 165 Conn. 400, 405, 334 A.2d 917 (1973). Together with the extensive evidence regarding motive, this evidence was sufficient to allow the jury reasonably to conclude that the defendant was guilty beyond a reasonable doubt. The defendant next claims that the trial court erred in declaring two state's witnesses to be hostile and in allowing the state to impeach their testimony by introducing prior inconsistent statements into evidence. The first such ruling occurred when the defendant's stepson, Jessie Rodgers, was on the stand. He had given three statements to the police shortly after the homicide. When confronted with these statements during his testimony, he claimed that he was misled into making the statements and that he could not remember saying what was in the statements. Further, the state's attorney represented that, on the basis of a prior conference with the witness, he expected the witness' testimony to square with the earlier statements. Relying on both hostility and surprise, he then sought and obtained a ruling declaring the witness hostile. The determination of hostility rests in the sound discretion of the court. State v. Roberson, 173 Conn. 97, 99-100, 376 A.2d 1089 (1977). The court below was acting well within its discretion in making the ruling complained of. See Liebman v. Society of Our Lady of Mount St. Carmel, Inc., 151 Conn. 582, 587-89, 200 A.2d 721 (1964). See 2 Wharton, Criminal Evidence (13th Ed.) § 484. The defendant also contends that the court erred in admitting into evidence one of the three statements given by Jessie Rodgers, which had been tape recorded. At trial the defendant raised the objection that the statement could not properly be used to impeach because the witness was not sufficiently hostile in the legal sense. In light of our resolution of the hostility issue, the defendant's argument fails. The other grounds argued on appeal for excluding the evidence were not raised before the trial court. As to these grounds, we cannot conclude that the record supports a claim that the defendant has been denied a fundamental constitutional right and a fair trial. Accordingly, we do not discuss these grounds. State v. Adams, 176 Conn. 138, 144-45, 406 A.2d 1 (1978); Practice Book, 1978, § 3063. See State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The defendant also challenges the court's ruling declaring Charles Rodgers, another witness called by the state, to be a hostile witness. The witness testified that he was the defendant's brother-in-law and that they grew up together. After reading his prior statement given to the police, the witness deified ever having said part of what was in the statement. At this point the witness was declared to be hostile. This ruling did not rest on any claim of surprise. Rather, it is supported on the dual basis of the close relationship between the witness and the accused and the inconsistency between the witness' prior statement and his testimony in court. See State v. Esposito, 166 Conn. 550, 554, 353 A.2d 746 (1974). Under the circumstances the court properly exercised its discretion when it declared Charles Rodgers to be a hostile witness. See Liebman v. Society of Our Lady of Mount St. Carmel, Inc., supra, 589. The witness' prior inconsistent statement was introduced into evidence for impeachment purposes. The defendant claims that the statement, in which Rodgers indicated that the defendant told Rodgers that he shot Gilbert, should have been excluded from the case because its prejudicial impact outweighed its probative value. Prior to the statement being admitted into evidence, however, the witness had already testified without objection that he "didn't say my brother-in-law shot him" and "I did not say that he shot William Earl Gilbert." The critical information, therefore, had already been presented to the jury before the prior statement was formally admitted. In State v. Vennard, 159 Conn. 385, 392-94, 270 A.2d 837 (1970), cert. denied, 400 U.S. 1011, 91 S. Ct. 576, 27 L. Ed. 2d 625 (1971), we found error, albeit harmless, when the trial court admitted a highly prejudicial statement for purposes other than proving the truth of the matter asserted in the statement. This conclusion was grounded on the statement's limited probative value combined with the presence of a nonprejudicial alternative method for establishing the point at issue. Id., 392-93. The present case is clearly distinguishable from Vennard in that the goal sought, impeaching the witness' credibility, could not be achieved through any other means. The witness had directly contradicted his prior statement. The only way to give the jury the benefit of this contradiction was to admit the prior statement. See State v. Roberson, 173 Conn. 97, 100, 376 A.2d 1089 (1977); 2 Wharton, Criminal Evidence (13th Ed.) § 484. At the close of the trial, the court clearly instructed the jury that they were to consider the prior statement of Charles Eodgers as bearing only on his credibility. No error resulted from allowing the impeaching statement into evidence. The defendant next attacks the allowance into evidence of his silence in the face of an accusatory statement made in his presence as an admission by conduct. The state sought to introduce the contents of a conversation described by Wedal Rodgers, the wife of the defendant's stepson Jessie Rodgers, in which Louise Harris threatened to kill her husband, the defendant, followed by the defendant's silence, under the rule articulated in State v. Ferrone, 97 Conn. 258, 266, 116 A. 336 (1922). That case holds that statements made within the accused's "hearing, which are relevant and material, to which he makes no reply, may be given in evidence as indicative of conduct on his part, when the circumstances show that he heard, understood and comprehended the statement, and the facts are known to him and he had the opportunity to speak and the circumstances naturally called for a reply from him." Id., 265-66. See 3 Wharton, Criminal Evidence (13th Ed.) § 700. Louise Harris' statement is subject to varying interpretations. In one sense it is accusatory. Prior to threatening to kill the defendant, she was bemoaning the death of Gilbert. Juxtaposed, these statements suggest that the threat manifested a desire for revenge against her lover's killer. Such an accusation ordinarily calls for a response; consequently, the ensuing silence, under circumstances where the defendant could have protested his innocence, could be construed as an admission of guilt and was therefore admissible under Ferrone. Although evidence of silence in the face of an accusation may be admissible under the ancient maxim that "silence gives consent" the inference of assent may be made only when no other explanation is equally consistent with silence. State v. Bates, 140 Conn. 326, 328, 99 A.2d 133 (1953). The presence of physical or emotional factors may be a sufficient impediment in a given case to the invocation of the inference. McCormick, Evidence (2d Ed.) § 270, p. 653. In this case, for example, there was evidence that at the time she made her threat Louise Harris was hysterical. In this circumstance the defendant may well have felt that any response on his part either would have been pointless because his wife's agitated mental condition precluded her from appreciating any reasonable rejoinder or might have exacerbated the existing tension. Because the situation involved the rantings of an hysterical person the conversation and ensuing silence should not have been admitted under Ferrone. Because this error was not of a constitutional dimension the defendant has the burden of demonstrating that the error was harmful. State v. Ruth, 181 Conn. 187, 197, 435 A.2d 3 (1980). This has not been done. His primary contention is that allowing the conversation into evidence improperly fortified the evidence of the defendant's motive for killing Gilbert. He argues that the conversation served to underscore the existence of an amorous relationship between Gilbert and Louise Harris. The record is replete with evidence of this relationship. To the extent that this conversation further supports the existence of such a relationship, it was merely cumulative, and thus its admission was not reversible error. State v. Barber, 173 Conn. 153, 160, 376 A.2d 1108 (1977); State v. Jeustiniano, 172 Conn. 275, 283, 374 A.2d 209 (1977). The existence of an affair between Louise Harris and Gilbert was established by the competent testimony of three witnesses, Wedal Rodgers, the defendant's stepdaughter-in-law; Brenda Myers, Gilbert's first cousin; and Mary Louise Lucky. The defendant also makes the broad assertion that he did not receive a fair trial. He rests this claim on more than thirty-two separate instances of error, the cumulative effect of which allegedly denied him the fair trial to which he was constitutionally guaranteed. U.S. Const., amend. XIY; Conn. Const., art. 1 § 8. He seeks appellate review in this regard under the doctrine announced in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). With the exception of the claim of ineffective assistance of counsel, none of these separate instances viewed in isolation rises, nor is claimed to rise, to the level of "exceptional circumstances" required by Evans to obtain appellate review of a claimed error not raised and decided by tbe trial court. See id., 69-70. Because the defendant's claim rests primarily on the cumulative effect of many alleged miscues that occurred over the course of the trial, we neither review each miscue in isolation nor pass upon the propriety or impropriety of each particular claim raised in the defendant's brief. Bather, we examine the whole record with a view toward determining whether the defendant's trial satisfied the standards set down by the fourteenth amendment to the United States constitution and article first, § 8 of the Connecticut constitution. From the briefs it appears that the individual instances that the defendant maintains deprived him of a fair trial fall into three broad categories. We discuss each one in turn. With respect to the claim that the prosecutor's prejudicial conduct and comments throughout the trial resulted in an unfair trial, the defendant cites in his brief the prosecutor's action in (1) turning witnesses' statements over to defense counsel in open court, (2) asking leading questions, (3) eliciting testimony of the defendant's prior misconduct, (4) commenting about a prospective witness and (5) making prejudicial comments during final argument. As stated earlier, none of this purported misconduct has been shown to impinge directly on any of the defendant's constitutional rights. Begarding the impact that these actions by the prosecutor had on the overall fairness of the trial, none of the claimed misconduct squarely affected any of the major portions of the state's case. Strong evidence of the defendant's motive along with the ballistics evidence linking the defendant to the gun that fired the .44 magnum shells found near Gilbert's body, which gun the defendant concedes was used to kill Gilbert, remains for the most part unscathed by the allegations of misconduct. Absent a showing that there is a reasonable possibility that the error complained of might have contributed to the conviction, we cannot hold that any "cumulative error" resulted in the defendant being denied a fair trial. See Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963). The second broad segment of the cumulative error claim concerns the trial judge's failure to intervene at several points during the trial in order to assure the defendant a fair trial. At the outset we observe that "[t]he action of a judge taking an apparent position of advocacy in a case before him has been continually condemned." State v. Echols, 170 Conn. 11, 13-14, 364 A.2d 225 (1975). Thus the court did not commit reversible error by failing, suo motu, to prevent the prosecutor from asking certain leading questions and from eliciting hearsay. Moreover, on the basis of the record in this case we cannot conclude that any of the claipied erroneous actions by the court would have been likely to affect the result. State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976). The final portion of the cumulative error argument concerns the ineffectiveness of the defendant's trial counsel. Because this claim has an independent basis in the sixth amendment to the United States constitution, we review the defendant's contentions in this respect both as combining with the first two categories of cumulative error resulting in the denial of a fair trial and on its own merits with respect to the defendant's independent right to the effective assistance of counsel. See State v. Clark, 170 Conn. 273, 280, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976). In analyzing this claim, however, we are again constrained to observe that the defendant has not demonstrated that any purported lack of competency contributed to the defendant's conviction. See State v. Barber, supra; State v. Clark, supra, 283. None of the claimed instances of incompetence would erase or overcome either the significant evidence of motive or the ballistics evidence. Without a causal link between the alleged mistakes of counsel and the conviction, the claim of ineffective assistance fails. State v. Clark, supra. Cumulating the effect of all three portions of the defendant's argument, we conclude that he received a fair trial that comported with the standards embodied in the fourteenth amendment to the United States constitution and article first, § 8 of the Connecticut constitution. The defendant next urges reversal based on a comment on the evidence made by the trial court regarding a missing witness. The remark occurred during a colloquy with counsel in which the propriety of the prosecutor's alluding to a missing witness in his final summation was being discussed. The defendant did not claim below or before us that such an inference could not properly be drawn by the jury. He only claims that the jury could have believed that the court had itself concluded that there was a missing witness and that an infer ence unfavorable to the defendant should be drawn therefrom. Contrary to the defendant's assertion on appeal, the judge's statement does not clearly indicate either that the court had drawn an unfavorable inference from the defendant's failure to produce a witness or that the jury were obliged to so conclude. When viewed in context, the judge's comment would fairly be taken by the jury to refer back, in shorthand fashion, to the prosecutor's defense of his summation that an inference can be drawn. To the extent that the court's remark is susceptible to a different interpretation, that an unfavorable inference should be drawn from the defendant's failure to produce a witness, we conclude that no error resulted therefrom. The remark was fleeting, directed only to counsel, and fairly ambiguous, especially to a lay person unacquainted with the legal principles surrounding the practice of drawing an unfavorable inference from a party's failure to produce a witness under certain circumstances. Moreover, the defendant never requested an instruction to the jury that would have clearly indicated that it was within their province to decide whether an adverse inference should be drawn from the defendant's failure to call the witness. The jury were not misled. The final two claims of error center on the court's instructions to the jury. The defendant first relies on the portion of the charge instructing the jury that Louise Harris, who the jury had been informed was also arrested and charged with murder and who did not testify, was entitled to a presumption of innocence. In response to an exception taken by the defendant at the conclusion of the instructions, the court explained more fully why she did not testify. At no time did the defendant call to the eonrt's attention any irregularity concerning the portion of the charge relied upon on appeal. In accord with our practice, this claim may not he raised for the first time on appeal absent a showing of exceptional circumstances. State v. Evans, supra; Practice Book, 1978, § 315, 3063. Again for the first time on appeal, the defendant assails the jury instructions on intent, relying on Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). Because the error claimed affects a fundamental constitutional right, we review the claim notwithstanding the failure to raise it at trial. State v. Arroyo, 180 Conn. 171, 429 A.2d 457 (1980). The instructions on intent given in the present case are practically identical to those approved in State v. Arroyo, supra, 179-81. What was said there need not be repeated here. The charge did not operate to shift the burden of proving the element of intent from the state to the accused. There is no error. In this opinion the other judges concurred. The pertinent testimony is as follows: "Q. What was said in Arthur's presence? A.. The first thing Louise said, 'They took him from me,' and — Q. Will you keep your voice up now, please. A. Yes. She said, 'They took him from me,' and then she turned around and said she is waiting for William to call her. Q. She was what? A. Waiting on William to call her. And she just that night just couldn't believe that he was dead. Q. What else was said? A. Well, there was my aunt and Eloise, they were trying to talk her into going to Long Wharf to get a sedative for her to go to sleep or relax her. Q. What is at Long Wharf? A. There is a medical center there. And then she got really hysterical and she got up and I can't remember what was said to her to get her hysterical, but she got up and she started upstairs saying that she was going to go get a gun to kill Arthur. Q. What did Arthur say when she said she was going to get the gun to kill Arthur? A. I can't remember him saying anything. Q. Did he mumble anything? A. I can't remember. Q. You can't remember? A. No." The pertinent remarks are as follows: "Mr. Eastman: I am going to object to that argument, your Honor. There is no showing that the child knows. Mr. Sperandeo: I claim it as an inference that can be drawn, your Honor. I think your Honor will bear me out. That is the law. Mr. Eastman: A seven year old child? Mr. Sperandeo: That is the law if it please the Court. The Court: Well, it is a missing witness and unfavorable." The defendant attempts to gain appellate review by pointing out that instructing the jury that Louise Harris enjoyed a presumption of innocence precluded him from proving that someone else committed the crime. Because this issue is central to the case, he maintains that it should be cognizable on appeal even though not raised at trial. Even if such a showing constituted "exceptional circumstances" dispensing with the need to raise a point at trial, we do not read the instruction complained of as broadly as does the defendant. Bead as a whole; see State v. Ralls, 167 Conn. 408, 422, 356 A.2d 147 (1974); the charge evinces a proper concern by the trial court that the jury would not assume solely on the basis of her being arrested and charged, that Louise Harris murdered Gilbert. Thus viewed, the charge did not curtail the defendant's ability to connect other persons to the crime. Those jury instructions on intent are as follows: "Now, intent is a mental process. A person's intentions may be inferred from his conduct. Every person is presumed to intend the natural and necessary consequences of his acts. It is often impossible and never necessary to prove criminal intent by direct evidence. Ordinarily, intent can be proved only by circumstantial evidence as I have explained that term to you. What a person's purpose or intention has been is necessarily very largely a matter of inference. A person may take the witness stand and testify directly as to what his or her purpose or intention was, and that testimony you can believe or not according to whether or not it warrants belief. But no witness can be expected to come here and testify that he looked into another person's mind and saw therein a certain purpose or intention. The only way in which a jury can determine what a person's purpose or intention was at any given time, aside from that person's own testimony, is by determining what the person's conduct was and what the circumstances were surrounding that conduct, and from those infer what the purpose or intention was. To draw such an inference is not only the privilege but it is also the duty of a jury, provided of course the inference drawn is a reasonable one. In this case, therefore, it will be a part of your duty to draw all reasonable inferences from the conduct of the accused in the light of surrounding circumstances as to what purpose or intention was in his mind at various times."

Hull, J. The defendant was convicted, after a jury trial, of interfering with an officer, a violation of General Statutes § hZa-lGla,, and disorderly conduct, a violation of General Statutes § 53a-182 (a) (l). He now challenges the judgment of conviction rendered against him, asserting as his only issue on appeal that the trial court erred in its instruction to the jury on the elements of the interfering offense. We conclude that the defendant did not properly preserve this claim and, accordingly, we decline to review it. The testimony at trial revealed the following. On May 12,1984, officers from the Seymour police department were dispatched to a home to investigate a report that the defendant, a police officer, had taken his daughter there from her mother's home in Ansonia in violation of a court ordered visitation schedule. When they arrived at the Seymour home, the police, who had previously been informed that a gun might be involved, encountered the defendant, who was quite upset, his daughter, his mother and other family members. They were told by the defendant's mother that she had hidden his gun. One of the officers, who knew the defendant, talked to him and was able to calm him down substantially. A short time later, however, the officer saw the defendant struggling with his mother for control of the weapon. He intervened and knocked the gun to the floor. During the incident, the gun made contact with the officer's stomach. Later, two police officers from the Ansonia police department arrived at the home and told the defendant that he was to be arrested for custodial interference and breach of peace. When the defendant questioned the officers' authority to arrest him, a struggle ensued which resulted in the defendant's being handcuffed, removed from the residence and placed in the patrol car. On the basis of this incident, the defendant was arrested pursuant to a warrant approximately four months later and was charged with the interfering and disorderly conduct offenses, the convictions for which he now challenges. The defendant's sole claim is that the trial court erred by instructing the jury on the interfering charge. While explaining the elements of the crime, the trial court informed the jurors that pursuant to General Statutes § 53a-23, the use of physical force to resist arrest was not justified. The defendant now argues that this discussion of resisting arrest was inappropriate because the state filed a bill of particulars in which it limited itself to proving that the interfering charge was based on the defendant's pushing the gun into an officer's stomach. He contends that the challenged instruction authorized the jurors to find that he committed the crime in another manner, by resisting arrest, and thereby encouraged a finding of guilty based on an uncharged theory of liability. The state claims that the defendant did not except to the charge on this basis and, accordingly, urges this court not to review the defendant's claim. Generally, this court will not consider error in a trial court's instruction to the jury unless the challenged matter was included in a written request to charge or an exception was taken after the charge was given. Practice Book § 854 and 3063. "Additionally, the exception taken must 'state distinctly the matter objected to and the ground of the exception.' (Emphasis added.) Practice Book § 854. This requirement is imposed so that the trial court will be made aware of claims of error in time to take appropriate remedial steps. State v. Packard, 184 Conn. 258, 281, 439 A.2d 983 (1981). Accordingly, a trial court's instructions to the jury will not be considered as error on appeal if the exception taken was 'insufficient adequately to apprise the court of the deficiency in the charge in a manner which would permit the court to make a correction.' State v. Peary, 176 Conn. 170, 182, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979)." State v. Alston, 5 Conn. App. 571, 573-74, 501 A.2d 764 (1985), cert. denied, 198 Conn. 804, 503 A.2d 1186 (1986). While the defendant did take an exception to the court's charge on resisting arrest, it was limited as follows: "If your honor please, I'd like an exception to the charge on resisting arrest and there was no justification. Section 53a-23. There's no charge for resisting arrest here. I think that may have a prejudicial influence because he's charged with disorderly conduct. He's not charged with resisting arrest. And I think that the instruction on that statute may make the jury feel that, with respect to the disorderly conduct, the fact that resisting arrest is an issue. " (Emphasis added.) This exception was adequate to indicate to the trial court that the defendant believed that the instruction on resisting arrest might be prejudicial in light of the disorderly conduct charge. It was not, however, sufficient to " 'bring to the attention of the court the precise mat ter' (emphasis in original) State v. Carter, 198 Conn. 386, 396, 503 A.2d 576 (1986); Woodruff v. Butler, 75 Conn. 679, 682, 55 A. 167 (1902); which the defendant now asserts as error: that by charging on resisting arrest, the trial court was allowing the jury to consider an uncharged theory for violation of the interfering statute. Because "[t]he exception to the charge was inadequate to alert the trial court to the specific deficiency now claimed on appeal"; State v. Carter, supra, 396; we decline to review this ground of error. There is no error. In this opinion the other judges concurred. General Statutes § 53a-167a provides in part: "A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties." General Statutes § 53a-182 (a) (1) provides: "(a) A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior . . . ." Apparently, the arrest made by the Ansonia police later was held to be illegal. The defendant was also charged with reckless endangerment, a violation of General Statutes § 53a-63 (a). He was acquitted of that charge. The state later filed an amended information to conform to the bill of particulars. Nor does this claim of error merit review under the fundamental rights-fair trial exception of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). "Under the Evans bypass rule 'we must first determine whether the charge raises a question of constitutional dimension and, if so, whether the claim has merit. State v. Kurvin, 186 Conn. 555, 557, 442 A.2d 1327 (1982); State v. Evans, [supra, 70].' State v. Torrence, 1 Conn. App. 697, 702, 476 A.2d 598 (1984) (Torrence I), aff'd, 196 Conn. 430, 493 A.2d 865 (1985) (Torrence II). If these two questions are answered affirmatively, we will then review the charge to see if there was error and if so, whether reversal is warranted. Torrence I, supra, 702-705." State v. Alston, 5 Conn. App. 571, 575, 501 A.2d 764 (1985), cert. denied, 198 Conn. 804, 503 A.2d 1186 (1986). Here, the defendant's claim arguably implicates a fundamental constitutional right: his right to notice of the nature of the charges against him. See State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986) (sixth amendment to the United States constitution and article first, § 8 of the Connecticut constitution guarantee a defendant a right to be specifically informed of the nature of the charges against him). The record, however, does not support a claim that the defendant was deprived of this right. A review of the trial court's charge to the jury discloses that while the court did discuss the legality of the use of force to resist arrest, it repeatedly instructed the jury that the defendant was not charged with resisting arrest. Additionally, the trial court used the statutory language of General Statutes § 53a-167a four times during its charge and each time confined the offense to the struggle over the gun. Under these circumstances, the defendant's claim does not warrant Evans review.

Borden, J. The plaintiff, a tenured teacher employed by the defendant, the Waterbury board of education, appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant which terminated his employment. He claims that the court erred in dismissing his appeal because the termination was flawed in three respects: (1) the defendant gave an inadequate written statement of its decision; (2) the defendant improperly imposed on the plaintiff the burden of proof at the termination hearing; and (3) the termination hearing did not comport with basic due process standards. We find error. The following facts are not in dispute: On March 5, 1979, the plaintiff fell while at work and received work related injuries to his back, neck, elbow and hand. He was still experiencing medical problems in March, 1982, when the defendant gave him a preliminary notice, pursuant to General Statutes § 10-151, that termination of his employment was under consideration. In response to his request for a hearing and for a written statement of the defendant's reasons, the defendant stated as follows: "The reason for such action is insubordination against Reasonable Rules of the Board of Education; failure to report to work without appropriate approval; and other due and sufficient causes." After the hearing, the board gave a written notice to the plaintiff of its decision as follows: "VOTED: That the contract of [the plaintiff] be terminated . for the reasons of: insubordination against reasonable Rules of the Board of Education; failure to report to work without appropriate approval for absence; and other due and sufficient cause." The plaintiff appealed to the trial court, which rejected his claims. This appeal followed. I The plaintiff first argues that the board's written statement of the reasons for its actions is constitution ally inadequate under Lee v. Board of Education, 181 Conn. 69, 434 A.2d 333 (1980). We agree. In Lee, the Supreme Court held "that a tenured teacher discharged for cause under General Statutes § 10-151 (b) is entitled, as a matter of constitutional law, to a written statement of the decision reached, the reasons for the determinations, and a fair summary of the evidence relied on. " (Emphasis added.) Id., 79. Simply and briefly stated, the written statement of the defendant is bereft of any summary of the evidence relied on. It is true that "[t]he statement of reasons and a fair summary of the evidence relied upon need not reflect the polish of a judicial opinion. Reasoned and fair decisionmaking, not technical finesse, is guaranteed by the due process standard of the state and federal constitutions." Id., 80. It is also true that "[cjonclusory language, however, will not suffice." Id. The terse, conclusory written decision of the defendant does not "state . . . the evidence upon which it relied." Id. Although our resolution of this claim of the plaintiff is dispositive, we also address his other claims. We do so because they are likely to recur at the further proceedings following our remand. II The plaintiff also claims that, at the termination hearing, the defendant erroneously imposed on him the burden of proof as to why he should not be terminated, and that the termination hearing itself failed to meet basic standards of due process. We agree. It is clear that the defendant had the burden of proving the grounds of termination alleged. Tucker v. Board of Education, 177 Conn. 572, 576, 418 A.2d 933 (1979). It is also clear that the defendant was "acting in a quasi-judicial capacity"; Petrowski v. Norwich Free Academy, 199 Conn. 231, 234, 506 A.2d 139 (1986); and that the plaintiff was entitled to "a fair hearing by an impartial panel." Id., 235. It is difficult to glean from the transcript of the hearing precisely who were the persons hearing the matter and who were the witnesses. Indeed, the face sheet of the transcript indicates that the hearing was held "before" seven named persons, one of whom was the president of the board and two of whom were the superintendent and deputy superintendent of schools. The transcript also indicates that the superintendent and deputy superintendent appeared to testify to facts, despite the fact that they were two of those ostensibly hearing the matter. At the least, their role is unclear from this record. It is clear, however, that an attorney from the office of the Waterbury corporation counsel appeared for the board to present its case. At the outset of the hearing, the counsel began by "establishing the facts as I see them." He did this, however, not by presenting evidence or documents to the hearing tribunal, but by reciting "facts" about the plaintiffs absence from work and the purported lack of explanation therefor. The counsel then stated: "Now, this hearing is for [the plaintiff] to give just cause, just reason why he refused to work, why he has not responded and why he's been out with no doctor's excuse on record." The plaintiff objected that an undue burden was being placed on him and that the hearing was not fair. This skewed course was, however, never corrected. From there, the "hearing" degenerated into a free-form discussion which hardly approached a quasi-judicial administrative hearing. There was no orderly presentation of sworn testimony and documentary evidence which the plaintiff could challenge by cross-examination. Much of the "evidence" came in through the unsworn statements of the board's counsel. Furthermore, it is apparent from the transcript that both he and the board regarded themselves as allies in the same cause. For example, when the plaintiff sought to introduce into evidence a series of medical reports regarding his condition, the chairman of the board stated: "All those reports that you're going to submit to the Board are— I'm going to tell you right now that they will be referred to the Corporation Counsel." An administrative hearing does not have to match the model of a trial in court. See Pagano v. Board of Education, 4 Conn. App. 1, 9-10, 492 A.2d 197 (1985). It must, however, meet some modicum of orderly and fair procedure. Id. This hearing did not. There is error, the judgment is set aside and the case is remanded with direction to sustain the plaintiff's appeal and to return the case to the board for further proceedings consistent with this opinion. In this opinion the other judges concurred. Presumably, the other four were members of the board.

Bieluch, J. The defendant has appealed from the judgment of conviction, after a jury trial, of one count each of burglary in the third degree, in violation of General Statutes § 53a-103; conspiracy to commit burglary in the third degree, in violation of General Statutes § 53a-48; larceny in the third degree, in violation of General Statutes § 53a-124; and conspiracy to commit larceny in the third degree, in violation of General Statutes § 53a-48. The defendant was sentenced to serve two concurrent three year sentences for the underlying counts of burglary and larceny, and two consecutive one year sentences on the conspiracy counts, for a total effective sentence of five years. The defendant claims that the court erred (1) in denying his motion for a mistrial and in failing to give the jury a cautionary instruction after the state attempted to argue that an adverse inference should be drawn from a witness' decision to remain silent, and (2) in permitting a charge of larceny in the third degree to go to the jury when the information charged him with larceny in the second degree. The jury could reasonably have found the following facts. The defendant was arrested early in the morning of April 10,1983, outside the Diane Knitwear Fabrics factory in Norwalk. City police officers had been directed to the factory by a security service, which had informed the police that an alarm had been triggered at the plant. Patrolman Steven J. Tyska was the first officer to arrive on the scene. While waiting for other police units to arrive, Tyska heard a person walking on metal stairs and then observed the defendant coming down a factory fire escape. The defendant was placed under arrest by another officer who had arrived at the scene. Tyska thereafter climbed the fire escape and found a large cardboard box and a green garbage bag which together contained a total of 145 sweaters. A subsequent search of the building by a police dog revealed two other men, Leon Knowles and James Leroy Moore, hiding under an empty box. As a result of these events, the defendant was charged on April 11,1983, in an information with (1) burglary in the third degree, in violation of General Statutes § 53a-103, (2) conspiracy, in violation of General Statutes § 53a-48, and (3) larceny in the second degree in violation of General Statutes § 53a-123. On April 29, 1983, the defendant pleaded not guilty to each of these three counts and elected to be tried by a jury. On the day before the trial commenced on these charges, June 13,1983, the state filed an amended information, adding a fourth count of conspiracy to commit larceny in the second degree, in violation of General Statutes § 53a-48. Our record in this case does not disclose that the defendant was thereafter put to plea on this charge, although, at the outset of the trial on the following day, after the reading of the four-count information, the court informed the jury: "On these charges he was arraigned. On his arraignment, he pleaded not guilty." On June 15, 1983, at the close of the state's case-in-chief, the defendant moved for a judgment of acquittal on the charges of larceny and conspiracy to commit larceny in the second degree, since the only evidence of the value of the 145 sweaters found by the police was below the minimum amount needed to establish larceny in the second degree. The state then conceded that it could not prove that the defendant had committed larceny in the second degree, and declared its intention to ask for an instruction on larceny in the third degree. The court granted the motion for a judgment of acquittal, but in view of the state's request the court stated that it would instruct the jury on larceny in the third degree. Additional motions for acquittal of the other charges were denied. In addition to charging on burglary in the third degree and larceny in the third degree, the court charged the jury on conspiracy to . commit burglary in the third degree and conspiracy to commit larceny in the third degree. The jury found the defendant guilty of all four of these charges. The court thereafter sentenced him to serve an effective sentence of five years in prison. The defendant's first claim of error is that the trial court erred in denying his motion for a mistrial after permitting the prosecution to claim, before the jury, that an adverse inference should be drawn from Moore's decision to stand on his constitutional right to refuse to testify. We find no error on this claim. Moore was called to the witness stand by the defense despite his declared intention to stand on his fifth amendment right to refuse to testify because of his pending criminal prosecution. When he repeated his intention to exercise that privilege, the assistant state's attorney interrupted any further questioning, stating: "Well, your Honor, I believe he is pleading the fifth amendment on the grounds that the answer to the question might incriminate him." Subsequently, the assistant state's attorney asserted that "[the fifth amendment] can only be invoked when the question will expose the witness to a substantial hazard of prosecution. So, if he is admitting here that he has invoked his fifth amendment privilege because it will expose him to a substantial hazard of prosecution, I would like to have that." The defense now argues that these statements improperly raised the inference that Moore had refused to testify because, if he testified truthfully, he would have had to state that he did conspire with the defendant. Despite the fact that the assistant state's attorney's comments were made before the jury, the defendant never objected to those comments on the day when they were made. Rather, on the next day, the defendant moved for a mistrial on this ground. Under very similar circumstances, our Supreme Court, in State v. Reddick, 197 Conn. 115, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986), concluded that the record did not support the defendant's claim that the court had erred in denying his motion for a mistrial, in which he alleged that the state knowingly and repeatedly asked questions of the witness designed to elicit an invocation of the witness' fifth amendment privilege. Id., 126. In the present case, the defendant failed to make a timely objection to the prosecutor's remarks. Nor does the record reveal that the court should have granted the motion for mistrial. " '[S]ome courts have indicated that error may be based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege. . A second theory seems to rest upon the conclusion that, in the circumstances of a given case, inferences from a witness' refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.' [Namet v. United States, 373 U.S. 179, 186-87, 83 S. Ct. 1151, 10 L. Ed. 2d 278 (1963)]." State v. Reddick, supra, 126. In the present case, it was the defendant's question which prompted the witness to invoke the fifth amendment, not the state's examination. The assistant state's attorney, by his comments, merely clarified the basis for the witness' invocation of that right. " '[T]he prosecutor need not accept at face value every asserted claim of privilege, no matter how frivolous.' Namet v. United States, supra, 188." State v. Reddick, supra, 127. In order to protect the state's legitimate interest in the prosecution, the prosecutor had the obligation to verify that the witness was invoking his own fifth amendment right. In so doing, he neither attempted to build his case upon adverse inferences, nor did he attempt to afford critical weight to his case by the pursuit of such an inference. Further, as the trial court indicated, if the witness had testified, that testimony could be used against him at his own pending trial. Similarly, his decision not to testify at the defendant's trial could be relevant to the state's subsequent prosecution of the witness. Thus, the court did not err in denying the defendant's motion for a mistrial. The defendant's second claim of error is that, since he was originally charged with larceny in the second degree in violation of General Statutes § 53a-123, the court erred in charging the jury on larceny in the third degree in violation of General Statutes § 53a-124 because larceny in the third degree is only a lesser included offense of the form of larceny in the second degree contained in General Statutes § 53a-123 (a) (2). We agree. On June 15, 1983, when the state rested its case-in-chief, the defendant moved for acquittal of the charges of larceny and conspiracy to commit larceny in the second degree. The court granted that motion but, in accordance with the state's concession that it could not prevail on the charge of larceny in the second degree and its request for a later instruction on larceny in the third degree, the court advised that it would later instruct the jury on larceny in the third degree. The defendant did not object to this sequence of events at the time, or at any time thereafter before the close of evidence. Further, the defendant did not submit any proposed instructions for the court's charge to the jury, nor did he except to the court's charge on larceny in the third degree. The defendant, however, has asked us to review this claim pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We conclude that such review is appropriate. "The state's right to amend must be limited to substitutions that do not charge the defendant with an additional or different offense because the defendant has a constitutional right to fair notice, prior to the commencement of trial, of the charges against which he must defend himself. See U.S. Const., amend. VI; Conn. Const., art. I § 8. Unless the original and the amended informations charge the defendant with the same crime, as was the case in State v. Wallace, 181 Conn. 237, 435 A.2d 20 (1980), amendment is permissible only to charge a lesser included offense. The constitutional right to notice is satisfied as to lesser included offenses because, 'where one or more offenses are lesser than and included within the one charged, notice of the one charged constitutes notice of any lesser included offenses. See Paterno v. Lyons, 334 U.S. 314, 320-21, 68 S. Ct. 1044, 92 L. Ed. 1409 (1948); Walker v. United States, 418 F.2d 1116, 1119 (D.C. Cir. 1969); State v. Conklin, 115 N.H. 331, 335, 341 A.2d 770 (1975); State v. Daniels, 223 Kan. 266, 271, 573 P.2d 607 (1977).' State v. Rodriguez, 180 Conn. 382, 402, 429 A.2d 919 (1980)." State v. Jacobowitz, 182 Conn. 585, 590-91, 438 A.2d 792 (1981). In this case, we are faced with a claim that "the record adequately [demonstrates] that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial." State v. Evans, supra, 70. The underlying question for our consideration is whether larceny in the third degree is a lesser included offense of larceny in the second degree as that crime was charged by the state. If it is not a lesser included offense, then the defendant was not given adequate notice of the charge against him, and his conviction must be reversed. In State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980), the court set out four conditions which must be met before a party is entitled to an instruction on a lesser included offense: "(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser." Id., 588. (Footnote omitted.) In this case, it is the second Whistnant criterion with which we are concerned. The defendant was charged with larceny in the second degree in violation of General Statutes § 53a-123. No subsection of the statutory crime was specified, nor was any bill of particulars filed. Thus, in measuring for the second criterion of Whistnant, we must determine whether it is impossible to commit any variant of larceny in the second degree as charged by the information without committing larceny in the third degree as defined by General Statutes § 53a-124, since our review of this criterion of Whistnant is limited to the contents of the information and any bill of particulars. State v. Jacobowitz, supra, 593. General Statutes § 53a-123 defines larceny in the second degree to include all larcenies where "(1) The property consists of a motor vehicle, the value of which is two thousand dollars or less, (2) the value of the property or service exceeds five thousand dollars, (3) the property, regardless of its nature or value, is taken from the person of another, or (4) the property is obtained by defrauding a public community, and the value of such property is two thousand dollars or less." Larceny in the third degree is defined by General Statutes § 53a-124 to include larceny where "(1) The value of the property or service exceeds one thousand dollars; or (2) the property consists of a public record, writing or instrument kept, held or deposited according to law with or in the keeping of any public office or public servant; or (3) the property consists of a sample, culture, microorganism, specimen, record, recording, document, drawing or any other article, material, device or substance which constitutes, represents, evidences, reflects or records a secret scientific or technical process, invention or formula or any phase or part thereof." Hence, if the defendant committed larceny by taking a motor vehicle valued at less than one thousand dollars in violation of § 53a-123 (a) (1), or by taking less than one thousand dollars from the person of another in violation of § 53a-123 (a) (3), or from a public community by fraud in violation of § 53a-123 (a) (4), he would have committed larceny in the second degree without having concomitantly committed larceny in the third degree. Factually, and by concession of the prosecution upon the motion of the defendant for acquittal, it is apparent that the state's intent then was to proceed with its prosecution of the defendant pursuant to § 53a-123 (a) (2). Therefore, the purpose of the amendment of the information during the trial and after acquittal of the charge of larceny in the second degree and related conspiracy charge was to adapt the prosecution to conform to the testimony that the value of the sweaters taken was between $2500 and $3000, a valuation below the minimum necessary for larceny in the second degree under § 53a-123 (a) (2), but fitting the parameters of larceny in the third degree defined in § 53a-124 (a) (1). Nonetheless, it is possible to commit a larceny in the second degree in violation of § 53a-123 as that crime was charged in this case without, at the same time, committing larceny in the third degree. Larceny in the third degree was not a lesser included offense of larceny in the second degree as originally charged. Therefore, the court erred in permitting the state to amend the information from larceny in the second degree to larceny in the third degree. State v. Jacobowitz, supra, 593. Our inquiry cannot end with a determination of the merits of the defendant's claims of error in this case, however. In the course of reviewing this appeal, we have noticed a plain error which, in the interest of justice, must be remedied. Practice Book § 3063; State v. Badgett, 200 Conn. 412, 432 n.10, 512 A.2d 160 (1986). The defendant was improperly convicted of two counts of conspiracy arising out of a single agreement. The state acknowledged, during trial, that "there was a meeting of the minds between [the defendant, Knowles and Moore] to go and commit a burglary at Diane Knitwear on the night in question. And there is also evidence that the meeting of the minds was to go there with the specific intent to commit a larceny." "Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one." Braverman v. United States, 317 U.S. 49, 53, 63 S. Ct. 99, 87 L. Ed. 23 (1942); see also Marcus, Prosecution and Defense of Criminal Conspiracy Cases (1985 and Sup.) § 4.02 [1] [a], p. 4-5 n.13. "The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute. . For such a violation, only the single penalty prescribed by the statute can be imposed." Braverman v. United States, supra, 54. The courts of this state have long held that "[t]he gist of the offense of conspiracy is the unlawful combination and not the accomplishment of an objective or objectives, whether lawful or unlawful. . . . Whether the information charges that the combination was formed to accomplish one or many objectives is immaterial. 'A combination to commit several crimes is a single offence [sic]. . . . No matter how many violations of law may be concerted by the confederates, if the concert takes place at one time, the crime is single.' " (Citations omitted.) State v. Hayes, 127 Conn. 543, 588, 18 A.2d 895 (1941). Accordingly, we find error in the defendant's conviction of two duplicitous conspiracy offenses, and in the court's subsequent imposition of consecutive one year prison sentences on those two convictions. This error relates to counts two and four of the amended information. There is no error on the first count (burglary in the third degree, § 53a-103); there is error on the third count (larceny in the third degree, § 53a-124), the judgment is set aside as to that count and the case is remanded with direction to render judgment that the defendant is not guilty of larceny in the third degree; there is error in the judgment convicting the defendant of both the second count (conspiracy to commit burglary in the third degree, § 53a-48) and the fourth count (conspiracy to commit larceny in the third degree, § 53a-48), the case is remanded and the trial court is directed to exercise its discretion and set aside the conviction on either the second count or the fourth count and to render judgment that the defendant is not guilty on that count. In this opinion the other judges concurred. The defendant also raises the claim that he received ineffective assistance of counsel. This claim is not properly raised on appeal and should be raised in a petition for a writ of habeas corpus. State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Rivera, 196 Conn. 567, 571, 494 A.2d 570 (1985); Miller v. Angliker, 4 Conn. App. 406, 416-17, 494 A.2d 1226 (1985). General Statutes § 53a-123 (a) (2) requires that for larceny in the second degree to be committed the property taken must exceed $5000 in value. The only testimony offered by the state placed the total value of the sweaters between $2500 and $3000. At the outset, we wish to note a defect in the proceedings below. It appears that the defendant was never put to plea on the fourth count of conspiracy to commit larceny in the second degree added by the state in its substituted information of June 13,1983. Although an amended file copy of the information contains a notation that the defendant pleaded not guilty to that count at his original arraignment on April 29,1983, the fourth count was not added to the charges by the state until the day before trial commenced. Previous to that time, there was only one charge of conspiracy filed against the defendant. This issue was not raised on appeal as a claim of error, but we deem it important to clear the record. In any event, however, the failure formally to arraign the defendant on the fourth count would be harmless error after trial and verdict. See State v. Piskorski, 177 Conn. 677, 748, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). The defendant also claims that the court erred in failing to give a curative instruction to negate the effect of that inference. Indeed, although the court indicated that it would be receptive to any curative instruction which the defendant might propose, no such proposed instruction was ever offered by the defendant. This line of argument, therefore, is unavailing. State v. Reddick, 197 Conn. 115, 128, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). The defendant also claims that this line of argument was repeated by the prosecution during closing arguments. Since closing arguments were not transcribed, however, we cannot address this claim. Although neither the state nor the court expressly alluded to an amendment of the third and fourth counts to the lesser charges of larceny in the third degree and conspiracy to commit larceny in the third degree, respectively, we conclude from the record that the information was amended in that fashion. The information filed by the prosecution on June 13, 1983, shows a handwritten or manuscript amendment of the third and fourth counts to the third degree of each offense. Practice Book § 624 provides, in relevant part, that "[a]fter commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information or indictment at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced." In view of our discussion, infra, of the fourth count, namely, conspiracy to commit larceny in the third degree, we do not consider at this time the amendment of that count to this lesser degree of conspiracy to commit larceny.

Borden, J. These two appeals present the common issue of whether the trial court may preclude an attorney from representing only himself in litigation before the court. In each case, the court entered an order effectively barring the attorney from doing so. We find error in each appeal. In the first case, Daniel V. Presnick, who is an attorney, sued Ralph and Rita Esposito for legal fees for services which he rendered to them in another case. Presnick did not sign the summons, but he entered a pro se appearance and signed the complaint. The Espositos filed an answer, and also filed a counterclaim based on alleged malpractice by Presnick in his representation of them. In the second case, the Espositos brought a separate suit against Presnick based on essentially the same claim of malpractice as was alleged in their counterclaim. Presnick appeared pro se and filed an answer. The cases were consolidated by the trial court. In both cases, the court, Fracasse, J., sua sponte ordered Presnick to retain "outside counsel" to represent him. Thereafter, attorney David M. Presnick, who is the brother of Daniel V. Presnick, entered an appearance for Presnick in each case. David M. Presnick had the same office address and business telephone number as Daniel V. Presnick. The court concluded that David M. Presnick and Daniel V. Presnick were associated in the same law firm and, therefore, that Daniel V. Presnick had not complied with the court's order in each case. Accordingly, the court, Fracasse, J., rendered a judgment of nonsuit against Presnick in the first case and a default against him in the second case. The default was followed by a hearing in damages. The parties stipulated to a judgment of $700 against Presnick, subject, however, to Presnick's right to challenge the default judgment on appeal. These appeals followed. Presnick argues that the trial court improperly barred him from representing himself in these cases by ordering him to retain other counsel. We agree. We do not believe that there is any current basis in our law for the proposition that an attorney who seeks to represent only himself in litigation may not be per mitted to proceed pro se. The ethical rules and the authorities on which the trial court relied, and on which the Espositos rely in this court, are inapplicable. Disciplinary Rules 5-101 and 5-102 of the Code of Professional Responsibility address the situation in which an attorney is faced with the potentiality or actuality of dual roles, namely, as attorney for a client and as a witness in the client's case. We do not read those provisions as addressing the situation in which the attorney is the sole client and, thus, where the attorney is not cast in a dual role. This reading derives from the language of the disciplinary rules focusing on the question of whether a lawyer may "accept employment" or "undertak[e] employment." See footnote 3, supra. A lawyer who represents only himself in his own case cannot be viewed as either accepting or undertaking employment. Our cases in which the court has cautioned that an attorney should not also be a witness are, with one exception, cases in which the attorney was acting as counsel on behalf of a client and the attorney, or his law partner, also testified as a witness for the client. See, e.g., Lebowitz v. McPike, 151 Conn. 566, 570-71, 201 A.2d 469 (1964); Miller v. Urban, 123 Conn. 331, 333, 195 A. 193 (1937); Jennings Co., Inc. v. DiGenova, 107 Conn. 491, 496-501, 141 A. 866 (1928); Nanos v. Harrison, 97 Conn. 529, 530, 117 A. 803 (1922). In none of these cases was the attorney-witness also the sole client, as in this case. Indeed, the reasons underlying the general rule prohibiting an attorney from testifying in his client's case do not apply where the attorney is the client. Those reasons have been identified by our Supreme Court in Jennings Co., Inc. v. DiGenova, supra. One reason is that it is unfair to the client that his case be presented through a witness whom the trier of fact would necessarily view as interested because of the witness' zeal of advocacy and likely interest in the result of the case. Id., 497. A second reason is one of public policy: permitting an attorney who is trying a case also to be a witness in establishing its facts will visit on the legal profession public distrust and suspicion arising from the attorney's dual role. That is the reason which Professor Wigmore believed to be "the most potent reason for the prohibition of the attorney as a witness on behalf of his client. . . . " Id., 498, citing 4 Wigmore, Evidence (2d Ed.) § 1911. "The public will be apt to think that the lawyer, whether he is an active partner in the conduct of the trial and also a material witness, or an inactive partner and a material witness, will be inclined to warp the truth in the interest of his client." Jennings Co., Inc. v. DiGenova, supra, 498-99. The third reason for the rule is "to avoid the appearance of wrongdoing." Id., 499. We do not believe that any of these reasons applies where the attorney seeks only to represent himself in his own case. The case of Thresher v. Stonington Savings Bank, 68 Conn. 201, 206, 36 A. 38 (1896), is the sole exception in our state's jurisprudence to the line of authority which limits the general prohibitory rule to the situation in which the attorney-witness is performing a dual role as counsel for a client and as a material witness in the client's case. In Thresher, the plaintiff, who was an attorney, sued on a real estate contract to which he was a party. The Supreme Court found no error in the trial court's judgment in his favor. In dictum, however, the court noted that, although a "party to an action has a right to appear in court and try his own cause" despite the inconvenience it may cause in his examination as a witness; id., 206; "[i]n this case however, the party to the suit was also a practicing attorney at law; and the wholesome rule of professional etiquette which holds the positions of trial lawyer and material witness to be incompatible, applies as well, perhaps more strongly, to a case where the trial lawyer is his own client. The violation of this rule is, unfortunately, not without precedent, but it should be discountenanced by court and bar." (Emphasis added.) Id. We do not believe that this language of Thresher is currently viable law. First, it is clearly dictum, and the court did not suggest that the judgment rendered in the attorney-party's favor be set aside. Second, it refers to the rule as one merely of "professional etiquette," rather than of ethical behavior enforceable by barring the attorney from appearing pro se. Third, to the extent that the court in Thresher was using the phrase, "professional etiquette," as an equivalent to our current code of professional responsibility, it would not control this case because, as we noted above, the current rules regarding an attorney-witness do not reach the situation in which the attorney represents himself. Fourth, our Supreme Court has in recent years not seen fit even to comment on the fact that an attorney represented himself in simultaneous jury and court trials. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 457 A.2d 656 (1983). In that case, Cole, who was an attorney of long standing, represented himself both in the trial court and in the appeal, and that fact was well known to the Justices of the Supreme Court. There is error on each appeal, the judgments are set aside and the cases are remanded for further proceedings according to law. In this opinion the other judges concurred. Presnick claims on appeal that the court reached the conclusion that David M. Presnick and he were associated in the same law firm without a hearing and without any basis. In view of our disposition of these appeals, we need not reach that issue. The trial court also relied in part on the rule that an attorney may not sign his own writ and summons. See Willard v. West Hartford, 135 Conn. 303, 305, 63 A.2d 847 (1949); Low v. Madison, 135 Conn. 1, 6, 60 A.2d 774 (1948); Doolittle v. Clark, 47 Conn. 316, 317 (1879). In this respect, the court misperceived the record before it in the case in which Presnick was the plaintiff. Our examination of that trial court file indicates that, although Presnick signed the complaint, the action was begun by a summons signed by a different commissioner of the Superior Court, whose name is illegible and is not typewritten on the form JD-CV-1. Thus, we need not discuss whether this defect was waived by the failure of the Espositos timely to raise it. Furthermore, the cases which establish that rule do not go so far as to say that, once an attorney's action has been properly instituted by a writ and summons signed by another attorney, the plaintiff may not sign the pleadings, such as the complaint, and represent himself in trying the case. Disciplinary Rules DR 5-101 and DR 5-102 provide: "DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment. "(A) Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests. "(B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify: "(1) If the testimony will relate solely to an uncontested matter. "(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony. "(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client. "DR 5-102 Withdrawal as Counsel When the Lawyer Becomes a Witness. "(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101 (B). "(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client." It maybe that the oft-quoted, unattributed proverb, "He who is his own lawyer has a fool for a client"; McNamara, Ragbag of Legal Quotations, p. 22; will apply to Presnick in these cases. Foolishness, however, has never been considered to be a basis for banishment from the counsel table.

Kline, J. After a jury trial, the defendant, William B. Sehroff III, was convicted of the crimes of kidnapping in the first degree, in violation of General Statutes 53a-92 (a) (2) (A), sexual assault in the first degree, in violation of General Statutes § 53a-70 (a), assault in the second degree, in violation of General Statutes § 53a-60 (a) (2), and of six counts of theft of a firearm, in violation of General Statutes § 53a-212 (a). The defendant was given a total effective sentence of fifty years on all counts. From this judgment the defendant has appealed claiming that the court erred (1) by abusing its discretion in denying the defendant's motion to sever the six counts of theft of a firearm from the sexual assault, kidnapping and assault charges, and (2) in allowing the state's attorney to cross-examine the defendant about the firearms, when this subject was allegedly outside the scope of direct examination. The jury could reasonably have found the following facts: On August 8, 1982, between 1:30 and 2 a.m., the victim left her home to walk to her friend's home approximately two miles away. The victim was observed proceeding easterly on the Boston Post Road by Kenneth Smith of the Milford police department. The officer, concerned for the young woman's safety, drove down the road to an area where he could make a U-turn. Meanwhile, the operator, later identified as the defendant, of a white van proceeding easterly stopped to ask the victim if she wanted a ride, which she declined. The van proceeded over the crest of a hill and disappeared. As the victim continued to walk along the roadside, the defendant jumped out of the bushes, hit the victim on the left side of her head and pulled her over a guardrail into the bushes. She tried to escape but was subdued, and a knife was produced. The victim was told to remain silent as there were police in the area. Meanwhile, Smith discovered the van, examined it, and found no one inside. A radio check revealed that the van was registered to the defendant. After his investigation, he radioed the van's position to a brother officer at 2:15 a.m., but when he returned at 3:15 a.m., the van was gone. During this time lapse, the defendant and the victim made their way to the white van, which the victim recognized as the one which had stopped earlier. The victim had ample opportunity to observe her assailant and the interior of the van while he transported her some distance away from where the van had been parked. The defendant eventually parked and forced the victim to drink some wine and ingest some pills. At this point the defendant made her undress and sexually assaulted her. Afterwards, he put thumbcuffs on the victim's and his forefinger and lay down to sleep. Finding the position uncomfortable, he removed the thumbcuffs and went to sleep. After waiting a period of time, the victim was able to dress herself and escape, taking the keys to the vehicle with her. The incident was ultimately reported to the police and the defendant was arrested in the van at the place where the victim had escaped. The van was searched pursuant to a warrant. Among the many items found were six .22 calibre rifles that had been taken from a Boy Scout camp in New Hartford in August of 1982. I The defendant made a number of motions prior to trial. The only one which has become an issue in this appeal is his motion to sever the six gun charges from the other charges. The defendant's position was that he wanted to testify as to the sexual assault and kidnapping charges but that he did not want to take the stand relative to the firearms charges. The court denied the motion on two different occasions. "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 than 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)." State v. Rodgers, 198 Conn. 53, 63, 502 A.2d 360 (1985). Economy and expedition of judicial administration were of paramount importance in the instant case. The arrest on the firearms charges occurred as a direct result of the investigation of the other charges. If a second trial were to be had on the firearms charges alone, much of the evidence relative to the first three counts might have to be introduced to explain the officer's basis for searching the vehicle and discovering the firearms. Economy and expedition of judicial resources are not achieved when the same facts must be proved to two different juries. We have recently approved of the analysis employed by the Court of Appeals for the District of Columbia in Baker v. United States, 401 F.2d 958, 977 (D.C. Cir. 1968), cert. denied, 400 U.S. 965, 91 S. Ct. 367, 27 L. Ed. 2d 384 (1970). Baker held 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 reasons 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." Id.; see also Blunt v. United States, 404 F.2d 1283, 1289 (D.C. Cir. 1968); State v. Rodgers, supra, 65; State v. King, supra. In the present matter, although the defendant did declare that he wanted to testify with respect to the first three counts but not on the firearms counts, he at no time disclosed the substance of his expected testimony, and he demonstrated no reason for his not wanting to testify on the other counts. In effect, this deprived the court of the ability to make a decision that any claim of prejudice was genuine. The defendant's complete failure to substantiate his claim of prejudice falls far short of the "convincing showing" required by our cases. State v. Rodgers, supra; State v. King, supra. The defendant has failed to sustain his heavy burden of showing that the denial resulted in a substantial injustice or prejudice. We cannot find an abuse of discretion in the trial court's denial of the defendant's motion to sever. II The other issue raised by the defendant is whether the court was correct in allowing cross-examination concerning the rifles found in the defendant's van. The defense counsel asked the defendant the following question on direct examination: "You have seen numerous articles that have been introduced into evidence. Do you recognize them?" This question was asked after the state had presented its case-in-chief. There had been introduced as a state's exhibit a black metal box containing the six disassembled .22 calibre rifles. These had been identified as stolen from a Boy Scout camp. In answer to his counsel's question, the defendant replied: "Specific articles that I had in the van at the time." Counsel then asked: "Why did you have these articles in the van?" The defendant replied: "At the time I was living in the van because I was staying with my friend and his brother or somebody was coming down from Vermont, moving in. I got booted out the door and two days before I was arrested. I was moving to British Columbia, Canada permanently, as everything I owned was in the van, every bit of my belongings." The defense counsel then went on to inquire about the thumbcuffs. Counsel made no further reference to the rifles, since, as he had indicated in his motion to sever, his client did not want to testify about the rifles. On cross-examination, the state's attorney inquired about the rifles found in the van. The defense counsel objected on the ground that the question was beyond the scope of the direct examination. Initially, the trial court sustained the objection, then reversed itself and allowed the inquiry about the rifles. "[I]t is settled Connecticut law that inquiry upon cross-examination is limited by the scope of the direct examination . [T]hat scope is determined by all of the evidence offered during direct examination." Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 525, 457 A.2d 656 (1983); State v. Ouellette, 190 Conn. 84, 102, 459 A.2d 1005 (1983); State v. Moye, 177 Conn. 487, 507, 418 A.2d 870, vacated, 444 U.S. 893, 100 S. Ct. 199, 62 L. Ed. 2d 129, on remand, 179 Conn. 761, 409 A.2d 149 (1979); State v. Zdanis, 173 Conn. 189, 195, 377 A.2d 275 (1977); State v. Hall, 165 Conn. 599, 607, 345 A.2d 17 (1973); State v. Evans, 165 Conn. 61, 64, 327 A.2d 576 (1973). The trial court is, however, allowed a great deal of discretion in fixing the limits of cross-examination. State v. Amaral, 179 Conn. 239, 244, 425 A.2d 1293 (1979); State v. Croom, 166 Conn. 226, 231, 348 A.2d 556 (1974). This is abroad, general rule and ordinarily it does not present any difficulty to the courts. In this case, once counsel for the defendant asked about the articles in the van, he opened the door to questions relative to those articles, including the rifles. The cross-examination went to the very heart of the trial, especially when considered in light of the defendant's motion to sever. The cross-examination by the state's attorney delved into those areas on which the defendant had no desire to testify. It is the cross-examination of this defendant that brings into focus the ultimate question: do different rules concerning cross-examination of witnesses apply to the defendant in a criminal case who is testifying than apply to other parties or witnesses to a matter in litigation. In this instance we think not. While an accused has the right not to take the witness stand, if he does take the stand and testifies in his own behalf, he may be cross-examined and impeached as any other witness. Brown v. United States, 356 U.S. 148, 154-55, 78 S. Ct. 622, 2 L. Ed. 2d 589, reh. denied, 356 U.S. 948, 78 S. Ct. 776, 2 L. Ed. 2d 822 (1958). Subject to a few exceptions, the same rules of evidence apply in criminal cases as in civil cases. State v. Parker, 112 Conn. 39, 54, 151 A. 325 (1930). The most notable exceptions are the exclusionary rules prohibiting the use of evidence obtained in violation of the accused's constitutional rights. Tait & LaPlante, Conn. Evidence § 1.2 (b), p. 3. Those exceptions do not apply in this case. The defendant, when he took the stand, knew that he would be subjected to cross-examination. "While proper cross-examination must be related to the subject matter of direct examination . . . the trial court is allowed a liberal discretion in fixing its limits." Akers v. Singer, 158 Conn. 29, 36, 255 A.2d 858 (1969). "[T]he scope [of cross-examination] is to be measured by the subject matter of the direct examination rather than by specific exhibits which are introduced . . . ." United States v. Segal, 534 F.2d 578, 582 (3d Cir. 1976). The question on direct examination dealt in general terms with the contents of the van and was followed by a question which explained why the articles were in the van. Once the contents became the subject matter of questions on direct examination, it was proper to cross-examine the defendant as to the contents. His response on direct that "everything I own was in the van, every bit of my belongings" implied, though ambiguously, that he owned the rifles found in the van. The state was entitled to inquire about the basis for his ambiguous claim of ownership. Since the court allowed the cross-examination, it must be determined if there was an abuse of discretion. "It goes without saying that the term 'abuse of discretion' does not imply a bad motive or wrong purpose but merely means that the ruling appears to have been made on untenable grounds." State v. McCarthy, 130 Conn. 101, 105, 31 A.2d 921 (1943); Norris v. Clinkscales, 47 S.C. 488, 499, 25 S.E. 797 (1896). "In determining whether there has been an abuse of discretion, much depends upon the circumstances of each case." DuBose v. Carabetta, 161 Conn. 254, 263, 287 A.2d 357 (1971); Cummings v. General Motors Corporation, 146 Conn. 443, 449-50, 151 A.2d 884 (1959); Antonofsky v. Goldberg, 144 Conn. 594, 597, 136 A.2d 338 (1957). Considering the totality of the circumstances in this case, we cannot find that there was an abuse of discretion on the part of the trial court in allowing the cross-examination by the state. There is no error. In this opinion the other judges concurred.

The named defendant's petition for certification for appeal from the Appellate Court, 5 Conn. App. 633, is denied.

Peters, C. J. The dispositive issue in each of these appeals is whether the trial court erred in refusing to sever the joint trial of the two defendants. One defend ant, Daniel Vinal, Jr., was charged with murder in violation of General Statutes § 53a-54a. The other defendant, James Avis, was charged with felony murder in violation of General Statutes § 53a-54c. After a joint trial, the trial court accepted jury verdicts finding both defendants guilty as charged. The defendants appeal from these judgments. The jury could reasonably have found the following facts concerning the incident that gave rise to the charges. Early on the morning of October 8,1978, the defendants were together in a Torrington bar where they saw the victim. At approximately 5 a.m., the victim left the bar and drove toward Litchfield. The defendants departed immediately thereafter and followed the victim in an automobile driven by Avis. In Litchfield, the defendants forced the victim to the side of the road. They stopped their car nearby, got out, and approached the victim's car. While the victim remained in the driver's seat of his car, Avis attempted to take his wallet from him. When the victim resisted, Vinal shot him. Avis then took the wallet and the defendants fled. The victim died of his gunshot wound. Later that day, state police officers questioned Vinal and Avis about the victim's death but made no arrests. After his interview, Avis left the state. Vinal, who remained in Connecticut, was arrested on October 24, 1978, and charged with having murdered the victim. In December of 1978, Vinal, his attorney, and his investigator traveled to New Hampshire to speak with Avis whom they had located there. After several meetings, Avis prepared, in the presence of Vinal's investigator, a written confession in which he admitted that he had shot and robbed the victim and that Vinal had been unconscious during the incident. When Vinal returned to Connecticut, he submitted the confession to the Connecticut state police who immediately obtained a warrant for Avis's arrest. In June, 1980, police in Seattle, Washington, arrested Avis and returned him to Connecticut where he was then charged with felony murder. The defendants were tried together despite numerous motions by each defendant for severance. On appeal, both defendants claim that the trial court erred in failing to sever the two cases. Avis also contends that the trial court should have suppressed his written confession. Vinal claims that the trial court should have dismissed his indictment and that the state presented insufficient evidence to support his murder conviction. I Both Avis and Vinal argue that the trial court committed harmful error by requiring that they be tried together. We agree. The rules that govern motions for separate trials are well established in this state. When two or more criminal defendants are scheduled to be tried together and one or more moves for severance, separate trials "will be ordered where the defenses of the accused are antagonistic, or evidence will be introduced against one which will not be admissible against others, and it clearly appears that a joint trial will probably be prejudicial to the rights of one or more of the accused. The test for the trial court is whether substantial injustice is likely to result unless a separate trial be accorded." State v. Haskins, 188 Conn. 482, 450, 450 A.2d 828 (1982); State v. DeWitt, 177 Conn. 637, 644, 419 A.2d 861 (1979); State v. Varricchio, 176 Conn. 445, 447-48, 408 A.2d 239 (1979); State v. McLucas, 172 Conn. 542, 559, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 S. Ct. 174, 54 L. Ed. 2d 126 (1977); State v. Holup, 167 Conn. 240, 245, 355 A.2d 119 (1974); State v. Klein, 97 Conn. 321, 324, 116 A. 596 (1922); State v. Castelli, 92 Conn. 58, 63, 101 A. 476 (1917); State v. Brauneis, 84 Conn. 222, 226, 79 A. 70 (1911). " '[T]he phrase "prejudicial to the rights of [one or more of the accused]" means something more than that a joint trial will probably be less advantageous to the accused than separate trials.' " State v. Haskins, supra, 450; State v. DeWitt, supra, 647-48; State v. McCarthy, 130 Conn. 101, 103, 31 A.2d 921 (1943). The trial court enjoys wide latitude in applying this standard. The joint trial of defendants who are charged with crimes that arise from a single incident often benefits the defendants as well as the judicial system. On appeal, we will reverse a trial court's ruling on joinder only where the trial court commits an abuse of discretion that results in manifest prejudice to one or more of the defendants. See, e.g., United States v. Carpentier, 689 F.2d 21, 27-28 (2d Cir. 1982), cert. denied, 459 U.S. 1108, 103 S. Ct. 735, 74 L. Ed. 2d 957 (1983); United States v. Werner, 620 F.2d 922, 928 (2d Cir. 1980); United States v. Crawford, 581 F.2d 489, 491 (5th Cir. 1978); United States v. Robinson, 432 F.2d 1348, 1351 (D.C. Cir. 1970). Vinal and Avis argue that the trial court should have granted their motions for severance because their defenses were fundamentally antagonistic. To decide whether severance was necessary, we must scrutinize the strategies employed by each defendant at trial and determine, in light of the trial court's ongoing duty to monitor the fairness of the joint trial, whether conflict between the defendants tainted the proceeding. Such an inquiry in this case reveals that the defendants' defenses at trial were fundamentally incompatible and that the trial court abused its discretion in trying the defendants together. The state, in its bills of particulars, alleged that either Vinal or Avis had shot the victim. At trial, Vinal claimed that Avis had killed the victim. Avis defended by blaming Vinal for the murder. Each defendant introduced evidence that incriminated the other. Each attacked evidence that tended to exonerate the other. During their closing arguments, each vigorously sought to convince the jury that the other alone had killed the victim. Central to the conflict between the defendants was Avis's written confession in which he admitted that he had killed the victim and that Vinal had not participated in the crime. The confession was one of the few pieces of evidence at trial that directly suggested Vinal's innocence and Avis's guilt. Although it was the state that introduced the confession into evidence, Vinal adopted it as the centerpiece of his defense, claiming that it created an undeniable source of doubt about his culpability that precluded a finding of guilty. Avis, on the other hand, devoted much of his defense to challenging the credibility of the confession. His attorney claimed during final argument that Avis had falsely assumed responsibility for the murder as a ploy to extricate Vinal. Avis's attorney explained that, at the time his client confessed, Vinal had already been charged with murder and Avis believed that he could safely claim guilt because he was beyond the reach of Connecticut authorities while he was living in another state. Avis's attorney also brought to light through cross-examination dubious circumstances surrounding Avis's decision to confess, implying that Vinal and his representatives had tricked Avis into confessing to a crime that he had not committed. Avis's attorney suggested further that Avis was not the true author of the confession, claiming that Avis's vocabulary did not contain several words that appeared in the confession and that the confession was not written in the style of a man of Avis's verbal ability. Vinal's attorney did his best to refute Avis's attacks on the confession. During direct examination of his own witnesses, and even during cross-examination of the state's witnesses, Vinal's attorney continually sought to establish the credibility of the confession. Each defendant also employed various other tactics designed to shift blame for the crime to his codefendant. For example, Vinal introduced evidence of Avis's flight from the state after the murder and of Avis's use of various names during the months following the murder, alleging that the evidence was indicative of Avis's consciousness of guilt. During final argument, Vinal's attorney suggested that Avis had had a financial motive to kill the victim and reminded the jury that Avis had known the victim and had talked with him several hours before the murder. Avis's attorney emphasized in his closing argument the existence of a long list of evidence that implicated Vinal in the murder. In light of this record we must conclude that Avis and Vinal should have been tried separately. The trial court implied, in its memorandum of decision denying the defendants' motions to sever, that severance due to antagonistic defenses is necessary only when codefendants testify against each other at trial. Our case law supports no such proposition. See State v. Gordon, 170 Conn. 189, 365 A.2d 1056 (1976); State v. Holup, supra. The state argues that the joint trial prejudiced neither defendant because the trial court admitted no evidence that would have been inadmissible against either defendant in separate trials and because neither defendant raised arguments detrimental to his code fendant that would not have been available to the state at separate trials. Defendants who offer fundamentally incompatible defenses at a joint trial need not, however, make showings of such prejudice to establish the substantial injustice necessary to support a finding of error. When, as in this case, the jury can reasonably accept the core of the defense offered by either defendant only if it rejects the core of the defense offered by his codefendant, the defenses are sufficiently antagonistic to mandate separate trials. See State v. Gordon, supra; State v. Holup, supra; see also United States v. Berkowitz, 662 F.2d 1127 (5th Cir. 1981). If defendants are tried jointly in this context, "a substantial possibility exists 'that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.' United States v. Eastwood, 489 F.2d 818, 822 n.5 (5th Cir. 1973) (quoting United States v. Robinson, 432 F.2d 1348, 1351 (D.C. Cir. 1970))." United States v. Berkowitz, supra, 1134. Moreover, even where one defendant is found not guilty, it becomes likely under these circumstances that the conviction of the losing defendant is more a result of his codefendant's success in defending himself than it is a product of the state's satisfaction of its constitutional duty to prove the accused guilty beyond a reasonable doubt. In this case, both Avis and Vinal, out of necessity, sought to blame each other for the victim's death and constantly fought to frustrate each other's attempt to create doubt in the minds of the jurors. The trial court abused its discretion by holding a joint trial. We order that Vinal and Avis be retried separately. II Because we find harmful error in the trial court's failure to grant the defendants' motions for severance, we need consider only those additional claims asserted by the defendants that are likely to arise again at retrial and those which, if resolved in favor of either defendant, would result in his acquittal. Avis raises only one additional issue that we must consider on appeal. He claims that the trial court should have refused to admit his written confession into evidence because Vinal's attorney had obtained the confession improperly. According to Avis, Vinal's attorney violated Disciplinary Rule 7-104 (A) (2) of the Canons of the Code of Professional Responsibility by persuading Avis to confess in 1978. Disciplinary Rule 7-104 (A) (2) requires that "[d]uring the course of his represention of a client a lawyer shall not . . . [gjive advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client." Avis maintains that evidence obtained in violation of Disciplinary Rule 7-104 (A) (2) is inadmissible and that therefore the trial court erred. Because Avis did not raise this claim at trial, we do not review its merits on appeal. This court reaches the merits of issues not raised below only where the trial court has committed plain error; Practice Book § 3063; where "a new constitutional right not readily foreseeable has arisen between the time of trial and appeal"; State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); or where "the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial." Id.; see State v. Preyer, 198 Conn. 190, 502 A.2d 858 (1985). Avis concedes that his claim implicates no newly recognized constitutional right and that it does not involve the denial of a fundamental constitutional right and a fair trial. Instead, he urges us to hold that the trial court's failure to exclude the confession was plain error. We decline to so hold. Practice Book § 3063 permits us "in the interests of justice [to] notice plain error not brought to the attention of the trial court." We invoke this power only in extraordinary circumstances "where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). For example, we have found plain error where a trial court ignored a controlling statute that the legislature enacted to effectuate a fundamental right; State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980); Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259 (1980); and where the trial court failed to apply an analogous procedural rule. State v. Pina, 185 Conn. 473, 482, 440 A.2d 962 (1981). We cannot in this case characterize as plain error the trial court's failure to announce, sua sponte, that evidence is inadmissible when it has been obtained in violation of a disciplinary rule of professional responsibility. Avis has cited no precedent for such a treatment of Disciplinary Rule 7-104 (A) (2) in this or any other jurisdiction and we know of none. It would be unreasonable to expect the trial court to make any ruling on this issue without a request from one of the parties. Moreover, because Avis did not raise this claim at trial, the record on appeal is inadequate for us to determine whether Vinal's attorney violated Disciplinary Rule 7-104 (A) (2) at all. We do not know, for example, whether the attorney in fact gave Avis professional advice nor whether the conduct of the attorney's investigator was attributable to the attorney for the pur poses of this rule. Avis remains free to pursue this claim at retrial. We do not review it here. Ill Vinal raises three additional issues that we must consider. He claims that the trial court erred in failing: (1) to dismiss his indictment; (2) to acquit him after the state introduced evidence that exonerated him; and (3) to find that the state failed to prove that he possessed the requisite intent to murder. We find error in none of these claims. A Vinal argues that the trial court should have dismissed his indictment because the court had earlier failed to allow the grand jury that indicted him to consider Avis's confession. During the grand jury proceedings, Vinal had sought to make the confession available to the grand jurors, but the trial court ruled that it was hearsay and refused to allow it before the grand jury. The state has since conceded that the confession was admissible as a statement against penal interest and that it was erroneously kept from the grand jury. On appeal, Vinal claims that by refusing to give the grand jury access to the confession, the state failed to satisfy its obligation to "present the grand jury with any substantial evidence that would negate the accused's guilt, that is evidence which 'might reasonably be expected to lead the jury not to indict.' " State v. Couture, 194 Conn. 530, 557, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985), quoting United States v. Ciambrone, 601 F.2d 616, 622 (2d Cir. 1979). Because of this, he contends, the trial court committed harmful error by denying his motion to dismiss his indictment. We do not review this claim because to do so we would have to consult the transcript of the proceedings of the grand jury. While the record permits us to determine the exculpatory nature of the Avis confession, we would have to look to the other evidence considered by the grand jury in order to decide whether the admission of the confession would have altered the grand jury's finding of probable cause to indict. Such an inquiry necessarily would entail a review of the grand jury transcript. Under General Statutes § 54-45a (b), however, a grand jury transcript may only be used, in subsequent proceedings against an accused, to challenge the credibility of witnesses and to prove perjury. Our use of the transcript in this case would fall within neither authorized category. Because appellants may not prevail on claims of error that depend upon the unauthorized use of a grand jury transcript, we consider this claim no further. State v. Morrill, 197 Conn. 507, 498 A.2d 76 (1985); State v. Couture, supra, 554-55; State v. Canady, 187 Conn. 281, 287, 445 A.2d 895 (1982). B Vinal next claims that the trial court should have granted his motion for acquittal of the murder charge because the state introduced Avis's written confession into evidence. Vinal argues that because the state was bound by the content of the evidence it presented, and because Avis stated in the confession that Vinal did not participate in the murder of the victim, the state's introduction of the confession rendered its case-in-chief inadequate to support his conviction of murder. We disagree. The state's use of the confession at trial did not preclude it from proving that Vinal had killed the victim. In Connecticut, the proponent of evidence vouches for the credibility of the evidence he presents and may directly impeach that evidence only under certain specified circumstances. See State v. Mitchell, 169 Conn. 161, 164-65, 362 A.2d 808 (1975); Delfino v. Warners Motor Express, 142 Conn. 301, 307, 114 A.2d 205 (1955); Schmeltz v. Tracy, 119 Conn. 492, 498, 177 A. 520 (1935). The proponent, however, remains free to introduce contradictory evidence and ask the jury to accept arguments that rely on that evidence. See Weiner v. Loew's Enterprises, Inc., 120 Conn. 581, 584, 181 A. 921 (1935); State v. Guilfoyle, 109 Conn. 124, 133, 145 A. 761 (1929). In this case, the state was not bound by Avis's assertion that Vinal remained unconscious throughout the entire incident. In light of our holding, Vinal's argument becomes a simple challenge to the sufficiency of the evidence supporting the jury's conclusion that he killed the victim. In reviewing such a claim, we construe the evidence presented in the light most favorable to sustaining the verdict; State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985); State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); and then determine 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. Braxton, supra, quoting State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). We have reviewed the record and conclude that the state introduced sufficient physical and testimonial evidence to support the jury's conclusion in spite of the Avis confession. C The final issue raised by Vinal also involves the sufficiency of the evidence. Vinal contends that the state failed to prove that he was capable of forming the specific intent to commit murder on the morning of the victim's death because he was intoxicated. In support of this claim he points out that all of the state's witnesses who saw him during the hours preceding the murder testified that he was visibly intoxicated. Because the state produced no witnesses who testified to his sobriety, the defendant argues that the state failed to meet its burden of proving that Vinal possessed the requisite intent to kill the victim. We disagree. Vinal's argument erroneously assumes that intoxication automatically negates intent. A criminal defendant's intoxication is relevant to the determination of his capacity to form a specific intent to commit a crime; see State v. D'Antuono, 186 Conn. 414, 423, 441 A.2d 846 (1982); see also General Statutes § 53a-7; but it is not dispositive of the issue. It is for the jury to decide, after weighing all the evidence adduced at trial, whether a criminal defendant's intoxication rendered him incapable of forming the intent required to commit the crime with which he is charged. See State v. Smith, 185 Conn. 63, 70 n.7, 441 A.2d 84 (1981). In this case, the witnesses testified that Vinal had been drinking and that he seemed intoxicated. Nothing in their testimony required that the jury find that Vinal lacked the intent to kill. This was merely one permissible conclusion that the jury could reasonably have reached after considering the testimony. Its verdict indicates that it found that Vinal's intoxication had not rendered him incapable of forming the intent to kill the victim. Viewing the evidence in the light most favorable to sustaining the jury's verdict, we find no basis for disturbing its conclusion. See State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985); State v. Stepney, supra; State v. Braxton, supra. There is error, the judgments are set aside and the cases are remanded for separate trials. In this opinion the other judges concurred. "[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime. "(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person. "(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony." "[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury." Avis also claims that the trial court erred in allowing the state to amend the bill of particulars against Avis during trial and in permitting the state to introduce evidence against Vinal that was highly prejudicial to Avis. In light of our disposition of this case, we need not consider these issues. The Court of Appeals for the Ninth Circuit has observed that joinder of defendants "expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve upon juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once." Parker v. United States, 404 F.2d 1193, 1196 (9th Cir. 1968); see also United States v. Robinson, 432 F.2d 1348, 1351 (D.C. Cir. 1970). Vinal claims alternatively that the trial court should have granted his motions for severance because, at the joint trial, the state introduced his codefendant's confession into evidence and thereby violated Vinal's sixth amendment right to confrontation. See Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). Our holding on the issue of antagonism between the defendants obviates the need for us to consider this claim. The state's original bill of particulars accused Avis of robbing the victim and Vinal of killing the victim in the course of the robbery. During trial, the state amended the bill of particulars against Avis. The amended bill claimed that either Vinal or Avis had killed the victim. In contrast to the claim he raises on appeal, Avis argued at trial that Vinal's attorney also represented him at the time he confessed and that, therefore, the attorney-client privilege rendered the confession inadmissible. The trial court found that no attorney-client privilege existed. Avis does not challenge this finding on appeal. In his brief, Vinal contends that the grand jury proceeding that resulted in his indictment contained several other flaws. At oral argument, Vinal conceded that this court may not review these issues on appeal. We note that the jury at trial heard the Avis confession and nevertheless found that the evidence proved beyond a reasonable doubt that Vinal was guilty of murder. "[General Statutes] Sec. 54-45a. record of grand jury proceedings. transcripts, (a) In any grand jury proceeding ordered pursuant to the provisions of section 54-45, the official stenographer of the superior court or his assistant shall make a record of the proceedings excluding the deliberations, which shall be confidential and filed with the court. Access to the transcript shall be available only to the prosecutorial official or any person accused of crime as a result of the grand jury investigation or the accused person's attorney. The prosecutorial official or the person accused of a crime as a result of such grand jury investigation or the accused person's attorney may obtain a copy of the transcript by paying for it. "(b) The transcript of such proceedings may not be used as evidence in any proceeding against the accused except for the purpose of impeaching a witness, attacking the credibility of a witness or proving inconsistent statements of a witness. The transcript may also be used as evidence in a prosecution for peijury committed by a witness while giving such testimony." In November, 1982, the state constitution was amended to eliminate the requirement that a grand jury indict an accused before he is tried for any crime punishable by death or life imprisonment. The state constitution now requires that probable cause for such crimes be established at a hearing. See Conn. Const., art. I, § 8, and art. XVII. See footnote 1, supra. "[General Statutes] Sec. 53a-7. effect of intoxication. Intoxication shall not be a defense to a criminal charge, but in any prosecution for an offense evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negate an element of the crime charged, provided when recklessness or criminal negligence is an element of the crime charged, if the actor, due to self-induced intoxication, is unaware of or disregards or fails to perceive a risk which he would have been aware of had he not been intoxicated, such unawareness, disregard or failure to perceive shall be immaterial. As used in this section, 'intoxication' means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body."

Peters, C. J. The principal issue on this appeal is whether the defendants, the city of Norwalk (hereinafter Norwalk), and William R. Guarnieri, the former chief building inspector for Norwalk, fraudulently concealed the existence of a cause of action so as to toll the running of a statute of limitations. The plaintiffs, owners and former owners of houses in the Bound Brook Estates subdivision in Norwalk, commenced a suit against the defendants by complaint dated September 19, 1978. In that complaint, the plaintiffs alleged that the defendants were liable for negligence, nuisance, negligent nuisance, and fraudulent and reckless misrepresentations in connection with the construction of houses purchased by the plaintiffs. In order to avoid the defendants' special defenses that the plaintiffs' cause of action was time-barred, the plaintiffs affirmatively pleaded, pursuant to General Statutes § 52-595, that the defendants had "fraudulently concealed from the plaintiffs [the] existence of their cause of action." Following a lengthy trial, the defendants unsuccessfully moved for directed verdicts in their favor. Subsequently, the jury returned verdicts for the plaintiffs against Norwalk and Guarnieri on all counts, finding that, although the action had been brought more than three years from the acts and omissions in question, the statute of limitations had been tolled by fraudulent concealment on the part of the defendants. Compensatory damages of approximately $2.3 million were awarded to the plaintiffs. Claiming that there was insufficient evidence to support the verdicts, the defendants moved the trial court to set aside the verdicts and to render judgment for the defendants notwithstanding the jury's verdicts. These motions were denied by the trial court on May 9, 1983, and the ' defendants have appealed. We find error. The underlying facts are not in dispute. In 1965 and 1966, Bound Brook Estates, Inc. (hereinafter Bound Brook), received the approval of the city of Norwalk's planning commission and its common council to build a residential subdivision of 102 homes in Norwalk. Part of the land to be developed was a swamp composed of "soft, wet, marshy" soils. Bound Brook hired Harry E. Bryan, a well known professional engineer and surveyor of excellent reputation in the area, to plan the subdivision. Because of the soil conditions, Bryan determined that many of the houses would have to be built on pilings. Subsequently, Raymond Wennik, president of Bound Brook, engineer Bryan, the defendant Guarnieri, and a deputy building inspector met to discuss the pending construction. At the time, Guarnieri had been chief building inspector of Norwalk for approximately eight years. Although he had been involved in the residential construction business for a number of years, Guarnieri had no formal education in either engineering or architecture. Guarnieri discussed with Wennik and Bryan the building code requirements for the construction of piling foundations, but indicated that neither he nor anyone on his staff had the professional engineering expertise necessary to evaluate or supervise the design and installation of the pilings. Relying on provisions of the building code which permit the building inspector to accept reports and inspections by qualified experts outside the building department, Guarnieri arranged to have engineer Bryan assume responsibility for supervising the installation of the pilings and for certifying their compliance with the building code upon completion. Following this meeting, Guarnieri issued building permits for the project, and construction began, with untreated wood pilings used to support many houses. In accordance with his regular practice, Guarnieri opened a separate file in the building department office for each house to be constructed. When completed, each file contained the building permit, with a notation on its face that the house had a wood pile foundation; the certificate of occupancy signed by Guarnieri, certifying substantial compliance with the building and zoning regulations of Norwalk; the inspection field sheet, recording periodic inspections of the house during the construction process; a plot plan; and a letter signed and sealed by engineer Bryan, certifying that the pil ing foundation had been constructed in accordance with both the building code and the piling plan on file in the building department. These files were open to public inspection. In mid-1969, construction on the houses ended and Guamieri issued the final certificates of occupancy. Shortly after construction had been completed, several houses in the Bound Brook subdivision developed serious settlement problems, necessitating the repiling of three of them by Bound Brook. Bound Brook neither applied for nor obtained building permits for this work. During the next few years, settlement problems of varying degrees developed in some additional houses, culminating in the collapse in 1976 of the ground floor of one house. In 1977, Norwalk commissioned an engineering study of all the houses in the subdivision to determine the cause and extent of the problem and to attempt to find solutions. The study concluded that the wood pile foundations had been improperly designed, and that the use of untreated wood pilings had been inappropriate because of the fluctuating water table in the area. Following the release of this report, the plaintiffs filed the instant action. On appeal from the judgment against them, Norwalk and Guarnieri both claim that the trial court erred in failing to direct verdicts in their favor, or to render judgment notwithstanding the verdicts, because the evidence produced at trial was insufficient to establish that they had fraudulently concealed from the plaintiffs the existence of a cause of action. Without proof of fraudulent concealment, the plaintiffs' cause of action was barred by the statute of limitations. Because we find this claim of error to be well taken, we need not address the defendants' other assignments of error which challenge the trial court's rulings with regard to certain evidentiary matters, with regard to the instructions given to the jury, and with regard to sovereign immunity as a defense to Norwalk. To establish that the defendants had fraudulently concealed the existence of their cause of action and so had tolled the statute of limitations, the plaintiffs had the burden of proving that the defendants were aware of the facts necessary to establish this cause of action; Puro v. Henry, 188 Conn. 301, 311, 449 A.2d 176 (1982); and that they had intentionally concealed those facts from the plaintiffs. Zimmerer v. G. E. Company, 126 F. Sup. 690, 693 (D. Conn. 1954); Lippitt v. Ashley, 89 Conn. 451, 480, 94 A. 995 (1915); see note, "Fraudulent Concealment of a Right of Action and the Statute of Limitations," 43 Harv. L. Rev. 471, 474 (1929); comment, "The Application of the Doctrine of Fraudulent Concealment to Modern Federal Trade Conspiracy Cases," 14 Conn. L. Rev. 115, 127-28 (1981). The defendants' actions must have been "directed to the very point of obtaining the delay [in filing the action] of which [they] afterward [seek] to take advantage by pleading the statute." Lippitt v. Ashley, supra, 480; Zimmerer v. G. E. Company, supra, 693. To meet this burden, it was not sufficient for the plaintiffs to prove merely that it was more likely than not that the defendants had concealed the cause of action. Instead, the plaintiffs had to prove fraudulent concealment by the more exacting standard of " 'clear, precise, and unequivocal' " evidence; Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 163, 464 A.2d 18 (1983); Puro v. Henry, supra, 308; Alaimo v. Royer, 188 Conn. 36, 39, 448 A.2d 207 (1982). The plaintiffs claim that they sustained this burden by establishing: (1) that Guarnieri, and through him Norwalk, issued the building permits and certificates of occupancy without first obtaining test results and affidavits required by the Building Code; (2) that a deputy building inspector signed misleading field inspection reports and filed them in the building department office; (3) that Guarnieri permitted the repiling of several houses without requiring building permits; and (4) that both Guarnieri and Norwalk later failed to investigate or to warn the plaintiffs or to revoke the certificates of occupancy when they became aware that settlement problems had developed in a number of houses. The defendants, on the other hand, claim that, even if these allegations were true, they do not establish that the defendants intended to conceal the cause of action from the plaintiffs. Since intent to conceal is an essential element of fraudulent concealment, they maintain that the plaintiffs have not sustained their burden of proof, and that the trial court erred in denying their motions for directed verdicts and for judgment notwithstanding the jury's verdicts. Our review of a trial court's refusal to direct a verdict or to render judgment notwithstanding the verdict takes place within carefully defined parameters. We must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial; Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985); giving particular weight to the "concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony . . . .''Chanosky v. City Building Supply Co., 152 Conn. 642, 643, 211 A.2d 141 (1965). The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion. Bleich v. Ortiz, supra, 500-501; Pinto v. Spigner, 163 Conn. 191, 192-93, 302 A.2d 266 (1972); Chanosky v. City Building Supply Co., supra, 643. After a thorough review of the extensive evidence presented in this case, we conclude that the plaintiffs failed as a matter of law to meet their heightened burden of proving that the defendants fraudulently concealed the existence of the cause of action. The jury's verdict, therefore, cannot stand. Contrary to the plaintiffs' claim, the evidence that Guarnieri issued building permits and certificates of occupancy without first obtaining affidavits and test data concerning the piling foundations does not prove an intent to conceal the facts underlying the present cause of action. The evidence presented at trial established that Guarnieri's failure to require the test data was prompted by his reliance on the representations of a professional engineer that the piling foundations met the code specifications. Such reliance on outside experts is specifically authorized by the code, especially in situations such as the instant one in which the building inspector lacks the technical expertise to handle a particular project. See Connecticut Basic Building Code (1966) § 108.3, 111.4, 129.11 and 129.13. There was no evidence whatsoever that Guarnieri knew when he issued the building permits and certificates of occupancy that the piling foundations as designed and constructed were deficient or that the untreated wood pilings used were inappropriate for the area, nor was there any evidence that he intended to conceal these deficiencies. His acceptance of the engineer's conclusory certification of compliance without first obtaining affidavits and detailed test data may arguably have constituted a violation of some provisions of the building code, as the plaintiffs maintain. This conduct does not, however, without more, support a reasonable finding that Guarnieri intended to conceal from the plaintiffs the deficiencies in the piling foundations in order to delay their discovery of the cause of action. In like manner, evidence that a deputy building inspector incorrectly completed field inspection reports falls to prove an intent to conceal the cause of action. There was no evidence whatsoever that the deputy was aware of any deficiencies in the construction of the piling foundations at the time he signed the reports. On the contrary, the evidence established that he relied on the engineer's representations that the construction satisfied code specifications when he made his reports. The plaintiffs conceded in oral argument before this court that there was no evidence that the defendant Guarnieri knew that the inspection reports contained misleading statements. Without such knowledge, he could hardly have intended to conceal the rights the plaintiffs now claim to have. For similar reasons, even if the deputy's actions could be deemed attributable to Norwalk, a question we do not decide, the deputy's possible misconduct does not establish an intent to conceal on the part of Norwalk. Similarly, the evidence that Guarnieri failed to require building permits for the repiling of several houses by Bound Brook from 1969 to 1971 does not support a reasonable inference that Guarnieri thereby intended to conceal the cause of action. The repiling process was a major undertaking involving the removal of each house from its foundation, the demolition of the concrete slab upon which it had rested, the installation of new pilings with a large and noisy diesel or drop hammer, and the replacement of the houses on newly constructed foundations. In view of the intensely public nature of this process, we conclude that Guarnieri's failure to require building permits, even if arguably evidentiary of negligence in enforcing the building code, cannot reasonably be construed as evidentiary of an intent to conceal the problems with the houses and thus to delay the plaintiffs' discovery of their cause of action. Finally, the plaintiffs failed to establish that Guarnieri's subsequent failure to warn the plaintiffs about settlement problems or to revoke certificates of occupancy after problems had developed was motivated by an intent to conceal from the plaintiffs the existence of a cause of action in order to delay their filing suit. Although Guarnieri became aware sometime between 1969 and 1971 that several houses then required repiling, the record does not clearly establish that he had notice of continuing problems in the subdivision until the ground floor of one house collapsed in 1976. At that point, Guarnieri ordered an investigation and ultimately declared two houses unsafe for occupancy. In the absence of any clear evidence that he knew of the problems before that time, his failure to act earlier could not reasonably support a finding that he intended to conceal a cause of action from the plaintiffs. In short, after reviewing all of the evidence presented, we find as a matter of law that the plaintiffs did not sustain their burden of proof, and that the jury could not reasonably and legally have concluded that the defendants had fraudulently concealed from the plaintiffs the existence of their cause of action. Consequently, the plaintiffs' action was barred by the statute of limitations, and the trial court erred in failing either to direct verdicts in favor of the defendants or to render judgment for the defendants notwithstanding the verdicts. There is error, the judgment is set aside and the case is remanded to the trial court with instruction to render judgment in favor of the defendants Guamieri and Norwalk. In this opinion the other judges concurred. The plaintiffs are owners or former owners of fifty-nine houses in the subdivision. In this action, they joined as defendants Bound Brook Estates, Inc., the development company; Raymond Wennik, the president of Bound Brook Estates; Harry E. Bryan, the design engineer; Louis J. Gardella, Inc., the pile driver; the city of Norwalk; and William R. Guarnieri, the Norwalk building inspector. Bryan died prior to trial and his estate defaulted in this action. General Statutes § 52-595 provides: "fraudulent concealment of cause OF action. If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence." Verdicts were also rendered against all but one of the other defendants. Bound Brook Estates, Inc., and Raymond Wennik were found liable by the jury and subsequently reached an agreement with the plaintiffs, approved by the court, settling all claims against them for a total of $1.25 million. Only the defendant Louis J. Gardella, Inc., received a verdict in its favor. None of these defendants is a party to the present appeal. The plaintiffs have not challenged the jury's finding that the action was commenced more than three years from the acts and omissions in question and so would be barred by the statute of limitations absent fraudulent concealment by the defendants. In oral argument before this court, counsel for the plaintiffs conceded that the suit would be barred by the statute of limitations if fraudulent concealment were not established. The city of Norwalk adopted the state building code in 1961, and this code was in effect throughout the period of construction of the subdivision. Two of the plaintiffs' expert witnesses testified that only a professional engineer or architect was capable of designing a piling system. The text of the letter of certification is as follows: "In accordance with Building Permit Applications filed in the Office of the Building Inspector, we certify to the following: The piling and the reinforced concrete foundation for house on lot_are in accordance with the plans filed with the Office of the Building Inspector of the City of Norwalk and are in accordance with the building code and ordinances of said City of Norwalk." This letter was signed and sealed by Harry E. Bryan, registered professional engineer. General Statutes § 52-584 provides in relevant part: "limitation of action for injury to person or property. No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . ." General Statutes § 52-577 provides: "action founded upon a tort. No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." The plaintiffs, pursuant to Practice Book § 3012 (a), challenge the trial court's instruction that reliance is a necessary element of fraudulent concealment. Because of our holding that the plaintiffs failed to prove intent to conceal, we do not address this claim. We do not decide whether affirmative acts of concealment are always necessary to satisfy General Statutes § 52-595, as the trial court instructed the jury, or whether a failure to act would be sufficient. See comment, "The Application of the Doctrine of Fraudulent Concealment to Modern Federal Trade Conspiracy Cases," 14 Conn. L. Rev. 115 (1981). It was established that the building code requires permits for this type of repiling, and that Bound Brook never applied for them. It is unclear from the evidence whether Guarnieri learned of the repiling before it had begun, or after it was already underway. In view of our finding that this evidence does not establish an intent to conceal, we need not decide whether Guarnieri had a duty to investigate or to warn, or whether an intentional failure to act in such circumstances would be sufficient to establish fraudulent concealment. The plaintiffs also claim that Norwalk is liable because other members of the building department knew of problems in the subdivision and yet did nothing to correct them. We find no clear, -unequivocal evidence that anyone in the building department was informed of continuing problems in the subdivision after the repiling of several of the houses from 1969 to 1971. It is not necessary for us to decide whether, even if they were aware of the problems, Norwalk had a duty to investigate or to warn because we find no evidence whatsoever that any alleged inaction was motivated by an intent to conceal from the plaintiffs the existence of the cause of action. Instead, the only evidence on the issue indicated that, when Norwalk became aware of the seriousness of the problem in 1976, it held public hearings, authorized an engineering study which led to the filing of the instant action, and cooperated fully with the plaintiffs in their efforts to find solutions.

Shea, J. On March 3, 1975, the defendant, George Carter, was indicted by a grand jury for felony murder in violation of General Statutes § 53a-54c. After several competency hearings, where he was found incompetent to stand trial, the defendant eventually was found competent. At the ensuing trial he was convicted by a jury of felony murder on October 5, 1977. This court, however, subsequently set aside the defendant's conviction in State v. Carter, 182 Conn. 580, 438 A.2d 778 (1980). In a second trial, the defendant was again convicted of felony murder after a trial to a jury. From this judgment the defendant appeals, claiming that the trial court erred (1) in admitting evidence of the defendant's prior conviction for another murder, and, (2) in charging the jury concerning the definition of insanity. We find no error. On November 4, 1974, at approximately 6:20 p.m., the defendant registered as a guest at a Holiday Inn in New Haven. Later that evening, the defendant was seen in the lobby and the hotel bar adjacent to it. At about the same time the victim, Robert Roth, was seen in the hotel dining room. The victim had been residing at the hotel for several years. Because the dining room was closed by the time the victim had finished eating, he was required to exit through the hotel bar. There was no testimony that anyone had seen the defendant and the victim together. Some time after 10 p.m. that evening, Roth was robbed and murdered. Several items of jewelry and other personal possessions were taken from him, including a University of New Haven class ring bearing his initials. Although the victim did not smoke, a "Kool" cigarette was found in his room. Later the same evening, the defendant illegally entered an apartment in close proximity to the Holiday Inn, where he attacked and sexually assaulted its female occupant. The defendant then fell asleep, whereupon the woman left the apartment and called the police. The police apprehended the defendant, still asleep, at the apartment. When the defendant was arrested, he had in his possession a package of "Kool" cigarettes, a class ring engraved with the initials "R.I.R." and other items belonging to Roth. The defendant was then transported to police headquarters, where, the following day, he consented to the search of his hotel room. A search of the room uncovered only a single, unsmoked "Kool" cigarette. Blood stains on the clothing worn by the defendant at the time of his arrest were found to be of the same blood type as that of Roth. The police conducted a routine computer check which revealed that the defendant had been charged with a homicide in Richmond, Virginia, and had fled that state with the charge still pending. Subsequent to the defend ant's first conviction for the murder of Roth, he was extradited to Virginia where he was convicted of the murder in Richmond and sentenced accordingly. The defendant returned to Connecticut pursuant to a judicial order in order to be present at his second trial. The defendant did not testify at trial, nor did he concede that he had murdered Roth. Most of the defendant's case consisted of psychiatric testimony concerning his mental illness. Two expert witnesses testified that, at the time of the murder, the defendant was suffering from acute schizophrenia that seriously affected his ability to function and substantially limited his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. See General Statutes § 53a-13. In rebuttal, the state offered one expert who was unable to state conclusively whether or not the defendant was legally sane at the time the murder was committed. The jury was instructed correctly that the state had the burden of proving beyond a reasonable doubt not only the essential elements of the felony murder charge, but also the defendant's sanity at the time of the murder. I The defendant claims that the trial court erred in admitting evidence of his prior conviction for a murder in Virginia. Prior to trial, the state had disclosed that it intended to introduce various instances of prior misconduct of the defendant, including his Virginia murder conviction. Before the defendant called his first expert witness on insanity, he requested an advance ruling barring the state from cross-examining his witnesses concerning his prior convictions, including the Virginia murder conviction. The court did not rule on the matter at that time, postponing a resolution until the substance of the psychiatrist's testimony had been heard. After the defendant concluded his direct exami nation of the expert witness, he renewed his motion to bar evidence of the prior convictions, claiming irrelevance and undue prejudice. The court ruled that the state could inquire into the Virginia murder, stating that "when one gets into the question of insanity his entire life opens up, so to speak . ." On cross-examination the prosecutor attempted to elicit from the psychiatrist the effect the Virginia murder would have upon his conclusion that the defendant was criminally insane at the time of the murder of Roth. The defendant objected to the prosecutor's mention of the detailed circumstances of the Virginia murder because there was no evidence of those facts. On the basis of the prosecutor's improper reference to these facts, the defendant made a motion for a mistrial. The court denied the motion but did instruct the prosecutor to limit his questions to the defendant's conviction for the robbery and murder of a guest at a Holiday Inn in Virginia and to refrain from discussing the facts underlying that conviction. The jury was then instructed to disregard any references to the circumstances of that crime previously made by the prosecutor. The prosecutor resumed cross-examination and the witness testified that the existence of a conviction for a prior similar act was not inconsistent with his conclusion that the defendant was a schizophrenic. The defendant claims that the trial court should not have admitted evidence of the Virginia murder conviction because its prejudicial effect greatly exceeded its probative value. The basis for the trial court's admission of the defendant's prior murder conviction was that evidence of other crimes, especially those similar to the charged offense, is admissible because "a plea of insanity opens wide the door to all evidence relating to the defendant and his environment." Wilson v. State, 247 Ind. 454, 461, 217 N.E.2d 147 (1966). Recognizing that a plea of insanity triggers a broad inquiry into the defendant's entire life, courts have admitted evidence of prior misconduct because of its significance in showing the mental condition of the defendant, when such evidence would ordinarily be excluded. See Thomason v. State, 46 Ala. App. 10, 237 So. 2d 121 (1970); Burgunder v. Arizona, 55 Ariz. 411, 103 P.2d 256 (1940); People v. Vanda, 111 Ill. App. 3d 551, 444 N.E.2d 609 (1982); Fulmer v. State, 249 Ind. 261, 230 N.E.2d 307 (1967); Wilson v. State, supra; State v. James, 394 So. 2d 1197 (La. 1981); People v. Wood, 12 N.Y.2d 69, 187 N.E.2d 116, 236 N.Y.S.2d 44 (1962); State v. Johnson, 69 Wash. 2d 264, 418 P.2d 238 (1966); 1 Wharton, Criminal Evidence (13th Ed. 1972) § 222. "Whenever insanity is asserted as a defense and is supported by any credible evidence, 'it is of critical importance that the defendant's entire relevant symptomology be brought before the jury . . . .''[W]hen insanity is in issue, any and all conduct of the person is admissible in evidence.' To this end, the trial judge should permit 'an unrestricted inquiry into the whole personality of a defendant' and should 'be free in his admission of all possibly relevant evidence.' Any evidence of aberrant conduct or action, whether before or after the act charged, is accordingly admissible under the [insanity] plea." (Citations omitted.) United States v. Smith, 507 F.2d 710, 711 (4th Cir. 1974); see Sulie v. Duckworth, 689 F.2d 128, 131 (7th Cir. 1982), cert. denied, 460 U.S. 1043, 103 S. Ct. 1439, 75 L. Ed. 2d 796 (1983); United States v. Madrid, 673 F.2d 1114, 1122 (10th Cir.), cert. denied, 459 U.S. 843, 103 S. Ct. 96, 74 L. Ed. 2d 88 (1982); United States v. Hauck, 586 F.2d 1296, 1299 (8th Cir.), cert. denied, 441 U.S. 947, 99 S. Ct. 2170, 60 L. Ed. 2d 1050 (1978); United States v. Davis, 513 F.2d 319, 321 (5th Cir. 1975); United States v. Hartfield, 513 F.2d 254, 260 (9th Cir. 1975); United States v. Brawner, 471 F.2d 969, 976 (D.C. Cir. 1972); Pope v. United States, 372 F.2d 710, 736 (8th Cir. 1967); Davis v. United States, 364 F.2d 572, 574 (10th Cir. 1966). Evidence of prior crimes is inadmissible merely to show bad character of the defendant or a tendency to commit criminal acts. Spencer v. Texas, 385 U.S. 554, 560-61, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967); State v. Hauck, 172 Conn. 140, 143-44, 374 A.2d 150 (1976). There are, however, several exceptions to this general rule. "Evidence of other misconduct, although not ordinarily admissible to prove the bad character or criminal tendencies of the accused, may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of crimi nal activity." State v. Ibraimov, 187 Conn. 348, 353, 446 A.2d 382 (1982); see State v. Smith, 198 Conn. 147, 156-57, 502 A.2d 874 (1985); State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982); State v. Brown, 169 Conn. 692, 701, 364 A.2d 186 (1975). Where insanity has been raised as a defense to a crime, other misconduct bearing upon that issue is similarly admitted as an exception to the general prohibition against such evidence. Once the insanity defense is asserted by a defendant the state is entitled to use relevant evidence of prior crimes to rebut it. This rule, of course, is subject to the constraint that the probative value of the evidence must outweigh its prejudicial effect. See State v. Shindell, 195 Conn. 128, 134, 486 A.2d 637 (1985); State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983); State v. Holliday, 159 Conn. 169, 173, 268 A.2d 368 (1970). The trial court concluded that evidence of the Virginia murder was relevant after the testimony of the psychiatrist who based his conclusions, in part, on the significance of the sexual assault which resulted in the defendant's arrest and on evidence of a subsequent bribe he offered to a police officer when in custody at the police station. The psychiatrist testified that it would be extremely significant and diagnostic of schizophrenic behavior to commit rape immediately after brutally murdering another person because "only a schizophrenic could . . . commit a murder of this magnitude . . . and then [commit] some form of sexual act." He also testified that falling asleep after the rape is highly indicative of insane conduct as it clearly evinces an individual's inability to appreciate the wrongfulness of his conduct. Further, the offering of a bribe, he contended, would be consistent with schizophrenic behavior. Since the psychiatrist had referred to two other crimes as having significance in buttressing his opinion, the court properly concluded that evidence of a prior murder conviction, especially where the crime occurred only four months before the present incident and under similar factual circumstances, would also be relevant on the issue of insanity. We are required also to determine whether the probative value of the evidence is outweighed by its potential for unfair prejudice. State v. Braman, supra. Although the defendant here did not admit that he had killed the victim, the focus of the defendant's case was clearly his insanity at the time of the murder. It is difficult to perceive, therefore, how the evidence of the Virginia murder was so prejudicial as to outweigh its probative value on the issue of insanity. The danger of "other crimes" evidence is that a jury may use the information not for the limited purpose of its admission, but to establish the guilt of the perpetrator of the crime by assuming that " 'if he did it before, he probably did so this time.' " Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029, 88 S. Ct. 1421, 20 L. Ed. 2d 287 (1968). In bringing before the jury evidence of the crimes of sexual assault and bribery as a basis for the opinion of the psychiatrist upon the insanity issue, the defendant must have been aware of the risk that the persuasiveness of the state's evidence that he was the killer would be enhanced. He recognized, nevertheless, the significant probative value of such evidence upon his principal defense to the crime, insanity at the time of its commission. Although it must be conceded that the Virginia murder had a greater potential for prejudice because of its similarity to the crime charged, its relevance upon the insanity issue was clearer than that of the other crimes for the same reason. In fact, one of the psychiatrists testified, after the court had allowed the inquiries related to the Virginia murder, that "only someone who is schizophrenic can really . . . commit the same horrendous crime twice in so short a period of time." This evidence, therefore, provided an addi tional basis for the defendant's defense of insanity. The state did not attempt to use evidence of the Virginia murder solely to establish his propensity to commit a violent murder. The state referred to the Virginia conviction only to refute the expert's conclusions regarding the defendant's insanity. Finally, the court instructed the jury to consider the evidence only on the issue of insanity and not as proof that he had committed the crime in question. See United States v. Emery, 682 F.2d 493, 500 (5th Cir. 1982). In light of these factors, we cannot say that the trial court abused its discretion in concluding that the evidence was admissible on the issue of insanity because its probative value on the issue outweighed any possible prejudicial effect. II The defendant also claims that the trial court's instructions to the jury on the issue of insanity were erroneous because they included not only the appropriate statutory definition of insanity found in General Statutes § 53a-13, but also previously accepted common law definitions. See State v. Toste, 178 Conn. 626, 424 A.2d 293 (1979); M'Naghten's Case, 8 Eng. Rep. 718, 722 (1843). We decline to review this claim because the defendant failed properly to except to the instructions. The defendant filed a written request to charge on the insanity issue, urging the court to charge the jury upon the statutory definition of insanity. During its charge to the jury, the court on four occasions correctly recited the statutory definition. After the second recitation of the statutory standard, however, the court further defined insanity by providing the jury with two outdated common law definitions. At the conclusion of the charge, the defendant did except to the trial court's definition of insanity but only to the extent that it failed "to actually define the terms disease and defect" and "to provide a standard by which the jury can, in fact, decide whether a disease or defect was present." The defendant did not raise any exception with respect to the use of the common law definitions. The requirement that the claim be raised "distinctly" means that it must be "so stated as to bring to the attention of the court the precise matter on which its decision is being asked." (Emphasis added.) Woodruff v. Butler, 75 Conn. 679, 682, 55 A. 167 (1903). The exception to the charge was inadequate to alert the trial court to the specific deficiency now claimed on appeal. The failure of the defendant to state distinctly the matter being objected to immediately after the conclusion of the charge ordinarily renders the claim of error unreviewable on appeal. See Practice Book § 854, 3063. In the absence of a specific timely exception, a claim of error is "reviewable as an exceptional circumstance within the doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), only when the defendant can demonstrate that he has clearly been deprived of a fundamental constitutional right and a fair trial, or under Practice Book § 3063 as plain error." State v. Preyer, 198 Conn. 190, 196-97, 502 A.2d 858 (1986). As we recently have held in State v. Hinckley, 198 Conn. 77, 87, 502 A.2d 388 (1985), and in State v. Harman, 198 Conn. 124, 134, 502 A.2d 381 (1985), the failure properly to object to a court's charge on insanity renders the claim of error unreviewable by this court even under the exceptional circumstances doctrine of State v. Evans, supra, because the trial court is under no constitutional obligation to charge the jury with a definition of insanity that is "beyond criticism in every particular." State v. Harman, supra. In each of those cases, because the defendants took no exception to the trial court's charge on insanity their respective claims of error were not reviewed by this court. See State v. Jackson, 198 Conn. 314, 502 A.2d 865 (1986). The fact that the defendant here did except to the court's insanity charge does not alter the analysis, because he failed to identify specifically in his exception the inclusion of the outdated definitions. In this case, the court charged the jury four times with the proper statutory definition of insanity. The mere fact that the court once interjected additional common law definitions of insanity does not raise any fundamental constitutional right that would warrant review. Nor has the presence of the additional insanity definitions "constituted a manifest injustice to the defendant so as to impair the effectiveness or integrity of his trial," as is necessary to establish plain error. State v. Hinckley, supra, 88. There is no error. In this opinion the other judges concurred. The defendant's original conviction was reversed because the trial court failed to instruct the jury to draw "no adverse inferences" from the failure of the defendant to testify as required by General Statutes § 54-84 (b). See State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985); State v. Burke, 182 Conn. 330, 333-34, 438 A.2d 93 (1980). During argument of this appeal the defendant withdrew his claim, which had been briefed, that the trial court erred in not instructing the jury that the offense of manslaughter is a lesser included offense of felony murder. On the basis of principles articulated in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 441 (1980), we recently rejected such a contention in State v. Castro, 196 Conn. 421, 429, 493 A.2d 223 (1985). See State v. MacFarlane, 188 Conn. 542, 547-49, 450 A.2d 374 (1982). On appeal the defendant also challenges the authenticity of the Virginia conviction because a certified copy of the judgment was not produced. See State v. English, 132 Conn. 573, 581-82, 46 A.2d 121 (1946). The defendant, however, waived his right to object on that ground, because, at trial, he objected only on the basis of relevancy and undue prejudice. In fact, the defendant told the court that he did not contest his conviction for the murder in Virginia but objected only to the particular facts underlying it, because there was no evidence of those facts. "Let me take you back to August 8, 1974, to the Holiday Inn in Richmond, Virginia.. This accused is convicted of going into this room of a traveling salesman for Sperry Univac, beating him around the face and killing him and taking certain credit cards from him, leaving the room in total disarray, going out and getting caught with the credit cards. He has been convicted of that. Now, don't you think there is some similarity to that murder and what he is charged with here today? He is in a Holiday Inn in Richmond, Virginia. Mr. Carter told the police he was at the Holiday Inn, knew nothing about the murder and nothing about the credit cards. Someone was brutally beaten and robbed." In spite of the limiting instruction, the defendant also claims on appeal that the remarks of the prosecutor describing the murder so infected the fairness of his trial that a mistrial should have been granted. The trial court was justified in concluding that its curative instruction had rectified any prejudice that could have derived from the remarks and that a mistrial was not warranted. State v. Couture, 194 Conn. 530, 562-63, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). Although the defendant did file a request to charge on the statutory-definition of insanity, this cannot be viewed to preserve his appellate claim with respect to the nonrequested definitions because the court's charge did conform to the defendant's request by including the statutory standard on four occasions. This case cannot be considered to fall under the first exceptional circumstance of Evans of a newly discovered constitutional right not readily foreseeable at the time of trial. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); State v. Vars, 154 Conn. 255, 271-72, 22 A.2d 744 (1966). "[Practice Book] Sec. 3063. errors considered "The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interest of justice notice plain error not brought to the attention of the trial court."

FOSTER, J. The plaintiff is an industrial bank, as defined in chapter 211 of the General Statutes, Revision of 1930. On November 21, 1931 the five defendants executed and delivered to the plaintiff their promissory note in words and figures as follows; "No. 10,074 NOTE THE COLUMBUS INDUSTRIAL BANK $1,000.00 Bridgeport, Conn., November 21, 1931 Fifty Weeks after date, for value received, we, jointly and severally, promise to pay to the order of THE COLUMBUS INDUSTRIAL BANK, at its office in the City of Bridgeport, the sum of ONE THOUSAND DOLLARS ($1,000.00) haw ing deposited herewith as collateral security Installment Cer' tificate of Indebtedness for Investment of said Bank Class C. No. 10,074 and..................................................................................................................... And the makers hereof further promise, whenever requested by said Bank to increase the amount of security for this note to the satisfaction of the Bank and that, should there be a default in any of the weekly installments on the above cer' tificate for a period of two days after the same becomes due and payable, or for failure to comply with any other regula' tion of said Bank, then this note shall become due and pay' able at once at the option of the holder hereof, the -makers hereby waiving demand of payment and notice of non-pay' ment thereon. The makers of this note further agree that in the event that this note is not paid at maturity it shall bear interest from date of maturity until paid, at the rate of twelve per cent per annum. It is also agreed by the makers of this note that, should the said Bank at any time retain or employ an Attorney'at'Law for the collection of this note or any part thereof, then the amount of such Attorney's fees and charges shall be paid by the makers in addition to this obligation." On the same day an instrument called an Installment Cer' tificate of Indebtedness for Investment was executed by the plaintiff and the defendant, Charles G. Miller. This instrU' ment is as follows: "No. 10,074 Class C $1,000.00 THE COLUMBUS INDUSTRIAL BANK INSTALLMENT CERTIFICATE OF INDEBTEDNESS FOR INVESTMENT Sold to .CHAS. G. MILLER.................................... By THE COLUMBUS INDUSTRIAL BANK for the sum of ONE THOUSAND DOLLARS. The registered owner hereby agrees to pay at the office of the Bank during its office hours the sum of One ($1.00) Dollar each and every week for fifty (50) consecutive weeks for every Fifty ($50.00) Dollars of this certificate or its multiple, until the entire sum has been fully paid. Upon payment in full of this certificate and upon request of the registered owner subject to the conditions herein, this certificate may be converted into a Full Paid Investment Certificate of the said Bank, of a like amount, bearing interest at the rate of seven per cent (7 % ) per annum payable semiannually on the first days of January and July of each year at the office of said Bank. If the payments on this certificate are made regularly every week and the amount of this certificate is paid in full as agreed, the Bank will pay to the registered owner interest at the rate of two per cent (2 %) per annum. Larger weekly installments than those above agreed may be paid by the registered owner; but, if the aggregate amount of paid up installments is less than the aggregate amount of installments due, the said Bank, may at its option demand the surrender of this certificate, cancel the same and refund to the registered owner the amount paid on said certificate. Upon default in the payment of any weekly installment on this certificate for a period of two (2) days after the said payment becomes due and payable, or for failure to comply with any other regulation of said Bank, then the note for which this certificate has been pledged as security shall become due and payable at once at the option of the holder thereof, demand of payment and notice of non-payment thereon hereby being waived by the registered owner of this certificate. The registered owner or pledgee of this certificate may at anytime withdraw the entire amount paid or any part of it, provided he shall give five (5) days notice in writing to the Bank. The Bank may, at its option, refund to the registered owner or pledgee any sum paid on said certificate upon demand. This certificate shall not be valid for any purpose until it shall have been duly signed by the authorized officer. IN WITNESS WHEREOF The Columbus Industrial Bank has caused this certificate to be signed by its duly authorized officer and its seal to be affixed hereto this 21st day of November, 1931. THE COLUMBUS INDUSTRIAL BANK M. Del Vecchio, Treasurer. Bridgeport, Conn., November 21st, 1931. I hereby subscribe for the above Certificate of Indebtedness for Investment, and agree to the above terms thereof. Chas. G. Miller. Bridgeport, Conn., November 21st, 1931. For value received, I hereby assign all my rights, title and interest, in and to this Certificate of Indebtedness for Investment to The Columbus Industrial Bank. Signed in presence of: A. Del Vecchio Chas. G. Miller." The plaintiff brings this action for recovery of $1,000, being the principal of the note and attorney's fees for collection. The real defense, appearing in the answer, is that the plaintiff violated the provisions of section 4732 of the General Statutes, Revision of 1930, which is as follows: "No person and no firm or corporation or agent thereof, other than a pawnbroker as provided in section 2950, shall, as guarantor or otherwise, directly or indirectly, loan money to any person and, directly or indirectly, charge, demand, accept or make any agreement to receive, therefor, interest at a rate greater than twelve per centum per annum." Since it is the claim of the defendants that more than 12% per annum interest is charged upon the amount loaned, the Court received evidence as to a prior transaction, in settlement of which this transaction was made, in proof of the actual amount of money paid by the plaintiff to the defendants, recovery of which is claimed. The Court does not consider the evidence of the detail of the prior transaction. We commence our consideration of this case upon the foundation, that upon the execution and delivery of the note by the defendants to the plaintiff and the execution and delivery of the investment certificate by the defendant, Charles G. Miller to the plaintiff, the plaintiff executed and delivered its check for $920 to Charles G. Miller, who endorsed the same and delivered it to the plaintiff in part payment in settlement of the prior transaction. The plaintiff claims that the note and the investment certificate were separate and distinct transactions, carried out in accordance with section 4034 of the General Statutes, Revision of 1930, as amended by section 1508c of the Cumulative Supplement of the General Statutes (1935), which is as follows: "In addition to the general powers conferred upon corporations by section 3382, except as to the issuance of more than one class of stock, each industrial bank shall have the power to loan money, secured by mortgage of real estate located in this state, or on personal security; to discount or purchase notes, bills of exchange, acceptances or other choses in action and to sell its secured or unsecured certificates of indebtedness for investment or to be pledged as security for a loan or loans, whether made contemporaneously or otherwise, and to receive from purchasers of such certificates payment therefor in installments or otherwise, the receipt of, or the agreement to receive, payment for any such certificate in equal weekly or monthly instalments extending over substantially the period of any loan secured by a pledge thereof not to be construed as part payment of such loan. The total amount of outstanding certificates of indebtedness sold as investments, and not held by such bank as security for loans, shall, at no time, exceed the total of three times its combined capital, surplus and undivided profits." The plaintiff claims that the plaintiff made an interest charge of $60 or 6 per cent of $1,000, the amount loaned, and of $20 or 2 per cent of $1,000, the amount loaned, as a service charge; a total of 8 per cent on $1,000, paid in advance; being less than 12 per cent on $1,000 or $920, the amount paid. The defendants claim that the note and certificate of investment were one transaction whereby the plaintiff loaned to the defendants $920 on their note for $1,000 and also were to receive $20 per week until the full amount of $1,000 of the note was paid. It is conceded by the plaintiff that, if the two instruments constituted one transaction, then the plaintiff was to receive more than 12 per cent on the amount loaned. It is interesting to note that this plaintiff was the plaintiff in a similar action reported in 11 Conn. 84, decided in 1930 (Columbus Industrial Bank vs. Rosenblatt). The law appearing in section 1508c of the Cumulative Supplement to the General Statutes (1935), was passed in 1931. Upon the books of the plaintiff the note and the certificate of investment appear as two separate transactions, and all the payments made by the defendants are credited upon the certificate of investment, not upon the note. On the books of the plaintiff it, therefore, appears that nothing has been paid upon the note, except the $80, which was paid in advanee by its deduction from the $1,000. The plaintiff has evidently endeavored to follow the letter of the law, but whether it has succeeded in so doing remains for further consideration. It is first to be observed that the note and the certificate of investment bear the same number, "10,074", and the same date and were delivered to the plaintiff simultaneously. The note is executed by five persons, but only one of these five persons executed the certificate of investment; and I find that each contains the provision identical in effect. In the note appears: ". . . should there be a default in any of the weekly installments on the above certificate for a period of two days after the same becomes due and payable, or for failure to comply with any other regulation of said bank, then this note shall become due and payable at once at the option of the holder hereof . . . ." In the certificate of investment appears: "Upon default in the payment of any weekly installment on this certificate for a period of two days (2) after the said payment becomes due and payable, or for failure to comply with any other regulation of said Bank, then the note for which this certificate has been pledged as security shall become due and payable at once at the option of the holder thereof . . . ." A book was issued by the plaintiff, in which were entered payments on the certificate of investment. This book bears the same number, 10,074. The plaintiff's treasurer and manager testifies that this book was at times in the hands of defendants other than Miller, and that defendants other than Miller made payments to the plaintiff, which were entered in the book; and yet the defendant Miller was the only one of the defendants who executed the certificate of investment. The treasurer and manager of the plaintiff testifies in part as follows: "Q. Mr. Del Vecchio how was this loan to be repaid? A. $20 weekly installment, the loan you mean? Q. Please repeat the question. (Last question repeated by the stenographer.) A. $20 in weekly installment. I should add on the certificate. Q. All right, which is it? I asked you, how was the loan to be repaid? A. $20 in weekly installment on the certificate. Q. The certificate was part of the loan? A. Part of the loan, yes sir. Q. In other words, without the certificate no loan would be made? A. No sir. Q. In other words, in every transaction of your institution, the man borrowing the money, in addition to the applb cation signs the certificate? A. Right. Q. And the note, of course? A. Right. Q. How much has been paid and credited to the certifi' cate in this case? A. This— (Last question repeated by the stenographer.) A. $360. Q. Have you any record as to who made those payments? A. Yes sir. Q. Who made those payments? A. Up to $300 Madwid and Aldo, they paid it $10 each week. Q. Let me get that straight; you say up to $300? A. Up to $300. Q. In other words, they each paid $150? A. Right. The $60 we had; $80 by Aldo with two checks came back from the bank, insufficient funds, so it would leave a balance of $360. Q. Let me understand that. You mean there was an additional $80 in checks paid? A. Yes, by Aldo. Q. By Aldo, but he continued to pay and two came back, .so all he paid was $60? A. Yes, more as Madwid. Q. Now this was credited to the certificate? A. To the certificate, right. Q. In whose name is the certificate? A. Miller. Q. Is there anything on the certificate which says pay' ments by Madwid or Aldo, or any of the other co-makers, should be credited to the certificate? A. No. Q. There isn't? A. No. Q. Now do you say that there is still one thousand doh lars due on the note? A. Right. Q. Although the comakers have made payments of $360? A. On the certificate, on the certificate as— Q. Just a moment please. They have made payments of $360, that can be answered yes or no? A. Yes. Q. But you credited it to the certificate and not to the loan, is that right? A. Yes. Q. Why did you credit it to the certificate when Aldo and Madwid are not a party to the certificate? A. Because the certificate is a collateral for the loan. Q. What happens to the $360? A. It's credited on the certificate. Q. What happens to it now? A. It's still—I got it." It thus appears that the note and certificate of investment were tied closely together by number, date and the practically identical default provision and payments made by defendants other than Miller, the signer of the certificate of investment, and that the note and certificate of investment were consid' ered and treated by the plaintiff and the defendants as one transaction. The plaintiff merely endeavored to make the transaction conform to the statute by bookkeeping methods. ". • • The law will tear off any disguise from the transaction and if the purpose is to evade the provisions of the statute the loan will be treated as usurious." Atlas Realty Corp. vs. House, 123 Conn. 94, 99; 192 Atl. 564, 566. In the instant case there is such a purpose to evade the provisions of the statute. The loan is usurious. Judgment is rendered in favor of the defendants against the plaintiff.

FOSTER, J. The plaintiff has instituted this action against the defendant, based on acts and omissions of the defendant resulting in the death of the plaintiff's decedent. In a second defense the defendant sets forth that none of such acts or omissions were committed or omitted by himself personally; that he was the Sheriff of New Haven County; and that as such sheriff he was performing a governmental duty. To this defense the plaintiff demurs. Section 2006 of the General Statutes, Revision of 1930, provides that the sheriff of a county shall be the jailer of the county and may appoint deputy jailers, officers and employees. Over these officers he has full authority and control. They are his agents, for whose torts he may be held responsible under such circum' stances and conditions as under the law the principal is re' sponsible for the torts of his agents. Burr vs. Norton, 25 Conn. 103. The fact that the defendant in the exercise of his office was performing duties prescribed by law would not excuse him from the results of a tort committed by him. This fact is recognised by the terms of section 2019 of the General Statutes, Revision of 1930. The demurrer to the second defense of the answer is sustained.

BALDWIN, J. There are two sets of cases here. Four plaintiffs have each brought an action against the Highway Commissioner and the same four plaintiffs have each, also, brought an action against the City of Bridgeport. These actions arise as a result of an accident which occurred on Fair-field Avenue, in Bridgeport, about 2:30 in the morning of February 7, 1937, caused, it is claimed, by a defective condition of the avenue, which defective condition was the result of the negligence of the party bound to keep the avenue in a reasonably safe condition of repair for public travel. In one set of these cases, that duty is claimed to be upon the city; in the other set of these cases, that duty is claimed to be upon the Highway Commissioner. This question arises and the two sets of actions result because the General Assembly at its January Session of 1935, by Special Act, No. 298, approved May 16, 1935 (Part I, Vol. 22, Special Acts of 1935, p. 172), included Fairfield Avenue in Bridgeport in the trunk line system of highways in this State. Under the provisions of this act and the provisions of the General Statutes relating to trunk line highways, the Highway Commissioner had caused preliminary surveys to be made preparatory to the taking over of this highway and improving it as a part of the State system of trunk line highways. The State had not, however, begun any of the work necessary to the improvement of the highway except to cause the necessary survey to be made and had not assumed any further jurisdiction or control over the highway. The city, contemplating the future improvement and control of the highway by the State, had recently constructed along the central part of a westerly section of the avenue a sewer which had required an excavation of from 12 to 14 feet in depth, which required, in places, a considerable blasting of rock. This excavation caused the removal of the former hardened surface of the highway throughout the central area of this section of the highway, leaving the former hardened surface on each side of the central area. The highway is 62 feet in width between curbs and this central area varied in width from 7.8 feet to 14.6 feet. Its length was substantially more than 1,000 feet. Upon the laying of the sewer pipe, the earth removed for that purpose was replaced in the excavation and on December 24, 1936, the barriers employed to close this section of the street to public travel while the sewer construction work was proceeding were removed and the entire width of the street was thrown open to public travel. This section of street, up wards of 1,000 feet long, therefore included on each side of a central area of gravel surface varying in width from 7.8 feet to 14.6 feet, a warrenite surfaced strip. These warrenite surfaced sections were old, somewhat worn and included some cracks in the surface. Travel over this street is very heavy, it being one of the two main westerly outlets of the city, and this travel includes all forms of highway traffic. The result of this heavy traffic caused severe wear and tear upon that section of the street having the dirt surface and it became worn and uneven and required frequent attention. The city at the time of the accident and until in May, 1937, was maintaining this street. In May, 1937, the State Highway Department began its work of improvement and has since maintained that section of the street. It is this situation described that caused the two sets of actions to be brought, claiming liability, either against the Highway Commissioner or the city, because of a defective condition of highway that was the sole proximate cause of the several injuries suffered. It is conceded that unless the party bound to exercise reasonable care to maintain the street in a reasonably safe condition for public travel failed to exercise such care then no right of recovery exists. In other words, if the negligence of the Highway Commissioner on the one hand, or, if the negligence of the city on the other hand, in the supervision and maintenance of the street was not the sole proximate cause of the accident no right of recovery exists. Gustafson vs. Meriden, 103 Conn. 598. The plaintiff, Nicolina Garamella, was the owner of a Ford automobile which was being operated in a westerly direction by the plaintiff, Michael Garamella. The plaintiff, Harry J. O'Brien, administrator's intestate, Harry G. O'Brien, and the plaintiff, Anthony Salvo were passengers in this automobile. The injuries to Anthony Salvo were, at the time, serious. The injuries to Harry G. O'Brien resulted in immediate death. The injuries to Michael Garamella, the driver, were not serious. The automobile was a complete wreck. The claim of these plaintiffs is that while proceeding westerly at a rate of speed of from 25 to 30 miles per hour, because of the rough and uneven surface of the road and the holes and ruts in that area of the road having the dirt surface, more particularly, and because of the presence of stones and paving material, which rendered the road defective, the operator was caused to lose control of the car, which left the street, went over the curb and collided with a telegraph pole in front of Duncan's Inn at No. 3290 Fairfield Avenue. This telegraph pole was, at least, 12 inches in diameter. It was broken by the force of the impact so badly that it had to be replaced by another pole the next day. It was moved in the ground by the impact from six to eight inches. Upon colliding with the pole the automobile went into the air to a height of from four to five feet from the ground to the wheels and the wreckage came to rest 40 feet from the pole with which it had collided. One needs only to operate a car at a rate of speed of 25 to 30 miles per hour to conclusively demonstrate that if operating at such rate of speed and exercising reasonable care loss of control will not occur when driving upon a street in the condition that the evidence shows Fairfield Avenue to have been in at the time. Nor at such a rate of speed will such serious consequences happen to an immovable object such as a telegraph pole, or to a automobile, or to its occupants, as happened in this case. This mute evidence demonstrates that the automobile was being driven at a high, dangerous and negligent rate of speed, and therein lies the cause of the accident. The operator had driven over this road a week or ten days before this accident and on the night in question about two hours before the accident he had driven over it in the opposite direction. The city was giving frequent attention to the road and was exercising reasonable care in its supervision and maintenance. It was under construction, was well lighted and was reasonably safe for public travel for those operators of automobiles who used reasonable care for their own safety and for the safety of their passengers. Judgment is therefore entered for the defendants in each case.

FOSTER, J. The plaintiff claims that on April 6, 1937 he worked for the defendant, Louis Cohen, who was in the furni' ture business; that he went with the defendant David Cohen and one Fortin on a truck to deliver a refrigerator to a cus' tomer of Louis Cohen; that the truck was backed into the yard of the house where the refrigerator was to be delivered and was stopped near the steps leading to the rear entrance of the house; that the refrigerator was unloaded to the ground; that, as the plaintiff was putting the refrigerator on his back to take it into the house, David Cohen, without warning, backed the truck into the refrigerator, causing the plaintiff's foot to be caught between the refrigerator and the step of the house; thus causing injury to the plaintiff. The gist of the plaintiff's claim is that his injury was caused by negligence of the defendant, David Cohen, who was an agent of his father, the defendant, Louis Cohen. There were three persons present at the time and place of the alleged injury, the plaintiff, David Cohen, and one Fortin. The only testimony relating to the occurrence is that of the plaintiff himself. The plaintiff called neither David Cohen nor Fortin as witnesses. David Cohen testified on behalf of the defendants, but his counsel chose not to interrogate him as to the occurrence of which complaint is made. Counsel evidently considered that such testimony was unnecessary. The Court has caused a transcript to be made of the testimony of the plaintiff, so that it might be examined with care to ascertain if there is contained therein evidence of negligence of David Cohen. The most favorable testimony is as follows: "Q. Did anybody—did either Mr. Cohen or Mr. Fortin while Mr. Cohen was there say how it was that the Frigidaire happened to come over on your leg? A. No sir. Q. Well at any time afterward did anybody talk about how the Frigidaire happened to come over on your leg? A. The only thing I ever heard about it, that he was trying to back the truck out of the way. Q. Who told you that? A. Mr. David Cohen. Q. Well will you tell us about that, please? Tell us what he said about it. A. He said he jumped on the truck in order to take the truck out of the way in order to have more room so that they could get in back there. Q. Did he say what happened then? A. No he didn't. Q. He said he jumped on the truck to back it out of the way in order to make more room? A. Yes sir. Q. And that is how the accident happened, is that right? A. Yes." This falls far short of stating facts constituting negligence on the part of David Cohen. The position of the truck—.the backing of the truck might have happened on account of various reasons and in various ways. There was no burden on David Cohen or Louis Cohen to prove lack of negligence. The burden was on the plaintiff to prove negligence of the defendants. This he failed to do. Louis Cohen had four employees, a bookkeeper, David Cohen, Fortin and the plaintiff. David Cohen was attending Yale College and working for his father at odd times. That David Cohen was a regular employee of his father was amply proven by the eleven checks for $7.00 each covering the weekly wages of David Cohen during the period including April 6, 1937 as well as oral testimony. Moreover on April 17th, the plaintiff went to Louis Cohen .and asked for work. There being no work for him, he offered to settle any claim he had against- Louis Cohen and David 'Cohen for $8.00 and his doctor's bill. Louis Cohen on that date paid the plaintiff $8.00 (check, Exhibit 5) and on June 15 th paid the doctor $16.00 (check, Exhibit 2), and we have the doctor's receipted bill. Judgment may be entered in favor of both defendants .against the plaintiff.

McEVOY, J. The memorandum of decision in the accompanying case, LeLasher vs. Elm City Trucking Company, Inc., supra, p. 264, is incorporated as this memorandum of decision, with this distinguishing comment. The plaintiff in this action was a passenger in the car driven by her daughter, Gladys M. LeLasher. Under these circumstances the plaintiff in this action is not chargeable with the negligence of the operator of the car in which she was riding, as it appears that she exer' cised no control over the operation. At the same time her right of recovery is barred because it clearly appears, as is set out in the other opinion, that the injury was caused by the negligence of the operator of the car in which the plaintiff was riding and that, more important still, the collision was not caused by any negligence of the defendant. Under these circumstances no act or omission of the defendant materially contributed to or was a substantial factor in causing the collision in question. Under these circumstances judgment must be entered for the defendant to recover its costs.

SIMPSON, J. On September 12, 1934, the defendants executed and delivered to the plaintiff their note of that date for $1,413.59, payable to the plaintiff on demand, with interest at 5 % per annum, payable semi-annually. The note was secured by a second mortgage belonging to defendants. The note has never been paid. The premises securing said note was subject to a first mortgage to the Home Owners' Loan Corporation, and on January 14, 1936, the Home Owners' Loan Corporation instituted a foreclosure proceeding on its mortgage against the owners of the mortgaged premises, and the plaintiff, and judgment of foreclosure was entered therein, which judgment became absolute on May 6, 1936. The plaintiff thereupon lost its security and so far as it was concerned the deficit was the entire amount of the note. On July 2, 1935, the named defendant, Elmer E. Johnson, hereinafter designated the defendant, filed a voluntary petition in bankruptcy in the District Court of the United States for Connecticut. The defendant listed in his schedule of creditors two claims of the plaintiff, one for $1,413.59 as secured by the mortgage, being the note hereinbefore referred to, and an unsecured claim of $1,479.80. The defendant was adjudicated a bankrupt on July 3, 1935, and thereafter on July 25, 1935, the defendant offered and proposed a composition "in satisfaction of the unsecured debts (not entitled to priority) owed by him to each of said creditors", conditioned on paying thereon 25 % in cash. The plaintiff made no proof of either of its claims, but by its treasurer, Elkin Smith, who was also the trustee in bankruptcy, acquiesced in the composition and was paid 25 % of its unsecured claim, but nothing on its secured claim. Upon the foregoing facts the defendant claims that the plaintiff (a) could have had the security determined and filed a claim for the deficiency; (b) could have abandoned or given up its security and proved the claim as unsecured; or (c) could have declined to prove its claim and stand on its security; and not having done either (a) or (b) must be held as a matter of law to have decided to rely upon its security for the payment of its secured claim. The determination of the question involved depends upon a consideration of the effect of the composition upon the secured claim of plaintiff. "Composition" is a bargain between the bankrupt and his creditors which the Court compels dissentients to accept. Equitable Holding Corporation vs. Woody, 63 F. (2d) 751. By the composition, the rights of each creditor are fixed by the term of the bankrupt's offer, subject only to its confirmation and Judge's order of distribution. In re Pollak Co., Inc., 86 F. (2d) 99. In a measure, the composition supersedes, and is outside of, the bankruptcy proceedings. Nassau Works vs. Brightwood Co., 265 U.S. 269, 271. In the case of Cavanna vs. Bassett, 3 Fed. 215, it appeared that the defendants, partners in business, had filed a voluntary petition in bankruptcy. The plaintiff's claim was scheduled as secured and as a partnership debt. The bankrupts proposed a composition to their partnership creditors, which was accepted and ratified by the Court. Subsequently the plaintiff filed a bill in equity to foreclose a trust deed executed by the partnership to secure certain indebtedness including plaintiff's claim. The foreclosure was granted, the security sold, which proved insufficient to pay plaintiff's claim in full, and she secured a deficiency judgment for the balance. It was held, on application to have the execution on the deficiency judgment and the judgment set aside, or their enforcement stayed, that the composition proceedings did not operate to deprive a secured creditor of the right, after exhausting his security and ascertaining the amount unpaid, to assert against the bankrupt a claim for the deficiency, and that such claim might be enforced through the instrumentality of an execu' tion issued against the property of the debtor upon the de' ficiency judgment. In the above case the defendants claimed, as in the instant case, that as claimant did not surrender her security, nor ob' tain valuation of the same, nor apply to the Bankruptcy Court to have her security valued, and proof of her debt made, it must be regarded that she relied wholly upon her security, and was in legal effect remitted to it for payment of her claim, and that the indebtedness secured by the trust deed had been discharged by exhausting the security. The Court in rendering its decision said (p. 217): "Complainant had a right to hold on to her security, and as a secured creditor she could not properly participate in the composition proceed' ings. She could not be compelled to surrender her security, and come in and prove her claim; nor was it incumbent on her to have her security valued and then to make proof of any balance; nor should her failure to do this be taken as evidence that she intended to rely wholly for payment of her demand upon her security. The bankrupts knew, or should have known, that there was a liability that the security would not pay the indebtedness. They were chargeable with notice that such a contingency might arise, and if they desired to put complainant in position where the composition pro' ceedings would operate upon her, they might have applied to the court for proceedings compulsory in their nature to have the security valued. Not having done so, there remained a liability that in case the security should prove inadequate complainant would have the right, as to any deficiency, to compel payment of the same to the extent of the percentage paid to unsecured creditors under the composition. The case of Paret vs. Ticknor, 16 N.B.R. 31, [we] regard as authoritative upon the question." The case of Paret vs. Ticknor, 16 N.B.R. 315, 18 Fed. Cas. No. 10,711 and cases cited, is to the same effect, the Court holding that the composition did not, per se, extinguish plain' tiff's claim, but that he was entitled to 2? % (provided by the composition) of the final deficit, no matter when ascertained. This case, in its essential particulars, is on all fours with the instant case. In Flower vs. Greenbaum, 50 Fed. 190, it was held that if the debtor desired to have the composition operate upon the secured notes it was his duty to have the securities valued, and failing to do so he was liable for the same percentage of the deficiency as was paid to the unsecured creditors. The factual situation was substantially the same in this case as in the instant case. The Cavana, Flower and Paret cases arose under the Bankruptcy Act of 1874. In the case of American Woolen Company vs. Cohen, 127 N.Y.S. 787, decided in 1911, the question was whether the composition duly confirmed and carried out is a bar to the recovery of a deficiency judgment on fore' closure; the holder of the bond or mortgage having been duly scheduled as a secured creditor thereon, but not having proved its claim. The Court, after review of the Cavanhna and Paret and other cases, was of the opinion that the Cavanna and Paret cases were controlling decisions if the Bankruptcy Act of 1867, as amended by the Act of 1874, were substantially similar with the present Bankruptcy Act, and after a compari' son of the acts came to the conclusion that the question at issue was answered by the Paret vs. Ticknor and other cases cited, and held that the defendant had a good defense to at least so much of the deficiency as exceeds the percentage of payment of the debts under the composition. In other words, that the plaintiff could recover the composition percentage of the deficiency. See, also, In re Kahn (1902) 121 Fed. 412, and In re Dorb the Chemist, Inc. (1933) 3 Fed. Sup. 457. The plaintiff claims that inasmuch as the composition was with the unsecured creditors alone, there was no contract to-pay the secured creditors, and that therefore it should recover the entire amount of its secured note. The Court has found no-case to support this claim. The authorities cited in holding that the secured creditors can recover the pro rata amount of this deficiency are authority for holding that when a deficiency is found to exist it falls within the terms of the agreement. In view of the foregoing, and cases cited, the Court has reached the conclusion that the plaintiff is entitled to a judgment against defendant, Elmer E. Johnson, and as it appears-that the plaintiff received nothing by its security, the judgment against Elmer E. Johnson should be for 25% of its-claim of $1,413.59 or $353.40, with interest from date of con' firmation of composition, vis;., July 27, 1935, amounting in all to $415.25. The defendant Gladys H. Johnson defaulted and has made- no defense and judgment is rendered against her for the full amount of the note, $1,413.59 with interest thereon at 5 % from its date, September 12, 1934, amounting in all to $1,674.43.

MOLLOY, J. The costs involved here concern the above entitled three actions which were tried at the same time and which arose out of the same accident. No question is raised as to what might be termed the standard costs, such as writ fee, entry fee, judgment fee and file and indemnity fee and trial fee. The defendant does object to the charges for wit' nesses' fees and sheriff's fees. The basis of the defendant's objection on the matter of witness fees is that they should be allowed only for the day of trial and in one case only. I did not try these cases, but I assume that the various witnesses listed were summoned in good faith and that if they were not used they were actually ready to testify if needed; and further, that their testimony would be admissible. In that event section 220 of the Practice Book (1934) would be applicable and allowances for the wit' nesses would surely be made. In the instant cases, however, the witnesses, with the excep' tion of two, were present in court ready to testify all three days, on the first two of which the cases were not reached, being tried on the third day. The defendant's contention is that no allowance should be made for the two days the cases were waiting to be reached even though the witnesses were in attendance on those days. Section 2271 of the General Statutes, Revision of 1930, pro' vides: "Parties shall also receive, for each witness attending court, his regular fee and mileage." My interpretation of the above quoted statute is that if the witnesses are in court summoned in good faith and ready to testify, then the charges made for them are clearly allowable. Section 219 of the Practice Book (1934) is not applicable because that section refers to fees for witnesses in attendance in more cases than one, but where the suits are between the same parties. In the present instance there are three separate plaintiffs against one defendant. I have no doubt, therefore, that the charges made are proper as to the witnesses. Now as to the charges of the sheriff for travel, it seems to me that section 891c of the Cumulative Supplement to the General Statutes (1933), which amends section 2280 of the General Statutes, Revision of 1930, is controlling. This amendment provides: "Each officer or person who shall serve pro' cess shall receive fifteen cents for each mile of travel, to be computed from the place where he receives the process to the place of service, and thence in the case of civil process to the place of return." In other words, for service of civil process what the sher' ifps allowance for mileage shall be is stated clearly. Now in this instance the sheriff had three separate processes. For the service of each process he shall receive separate mileage. The fact Is that for the service of process (or in other words, for the service of a process) he shall receive so much for each mile of travel; or to put it in another way, he is engaged in three separate transactions; the statute provides that for the service of process he shall be allowed so much for mileage; so for each process he shall receive his mileage, and there were three processes involved here. In the amended bill of costs filed by the plaintiffs, a deduction was made of $10 for the three writs on the matter of the sheriff's travel. This reduction made more accurate in accordance with section 891c the sheriff's charges for travel in each writ, figured on the basis of the mileage to Glastom bury and back to place of return of the writs. On the matter of the sheriff's charges of $2 on each writ for securing property and $2 for time spent, there seems to be considerable confusion as to what should be the rule. There is no written rule or statute unless it is that part of section 2280 of the General Statutes, Revision of 1930, wherein it is provided: "The officer serving any attachment or execution, and making claim for compensation for time and expenses of any person, in keeping, securing or removing property taken thereon, provided he make out his bill on the same, specifying the labor done, and by whom, the time spent, the travel, the money paid, if any, and to whom and for what, a reasonable compensation for such services, and the amount of such ex' penses, to be taxed by the court with the costs." It does not appear in the sheriff's return that he hired any' one or how long a time he spent in making the attachments, but on the matter of securing the property I cannot see any objection to a charge of $2 on each writ because the sheriff does in truth secure the property in three separate attachments. If, for instance, he was securing the property under instruc' tions of three attorneys, each acting for a different plaintiff, then surely no objection could be raised. To be sure, in the instant cases he was acting for one attorney in three suits against one defendant, but his acts of attaching were three separate performances, and a charge of $2 for each does not seem unreasonable, particularly in the light of no evidence offered to show that the charges were unreasonable. Now this discussion may well concern also the charges for time spent for which the sheriff charges $2 in each writ. To be sure, the two attachments after the first one may not have taken any appreciable time; yet it may well be that the sheriff had more difficulty concerning the whole affair of making three attachments than appears on the face of his returns. He was entitled to make a charge for time spent. He might have made a flat charge of $6 for this in the return of his first at' tachment and no charge for his subsequent attachments. In any event, when no evidence is offered to this court attacking the reasonableness of the charges other than that the sheriff is supposed to have made only one trip, this court does not feel inclined to interfere with three separate charges of $2 when one of $6 might well have been made under the cir' cumstances. • Therefore, the bills of costs as taxed and stated by the plaintiffs are allowed.

BALDWIN, J. Plaintiff has filed his assignment of errors and has attached thereto a transcript of the testimony of J. Henry Mumblo, the plaintiff, and in addition, he has filed a motion for leave to have this transcript certified by the official reporter and when so certified to have it made a part of the record in this appeal. I have examined the assignment of errors and endorsed my refusal thereon. In addition to the viewing of the premises at the request of the parties, there was credible evidence which contradicted the claims of the plaintiff, whose claims and testimony in support thereof were not credible. The. transcript which plaintiff moves to have certified and then made a part of the record and this statement does not present all of the evidence material to the errors assigned and the motion to have the evidence certified and made a part of the record is denied in accordance with the provisions of section 349 of the Practice Book (1934).

FOSTER, J. These two cases were tried together. The Court finds the following facts: On or about July 1, 1936 O'Neil Brothers, Inc., (hereinafter called the contractor) was engaged in constructing a sewer and in doing other work in Milford. The contractor, having need of a concrete mixer, hired one from the defendant, the defendant having knowledge of the use for which it was intended. The concrete mixer was delivered to the contractor by the defendant on the morning of July 1, 1936. A general description of the concrete mixer is that it consists of a cylindrical part, in which sand, stone and gravel are mixed by mechanical means; a hopper attached to the outside of the cylinder by hinges; a gas engine furnishing power for the operation of the whole apparatus. The hopper may be dropped to the ground, where it is loaded with the ingredients, and it is then raised by power upon its hinges, so that its load is dumped into the mouth of the cylinder. Shortly after delivery of the apparatus to the contractor, it was found defective, and the defendant was notified of such fact. The defendant immediately sent a mechanic, who found that the timing of the engine was defective, and he repaired it. The apparatus was then used by the employees of the contractor. Later in the day the contractor again notified the defendant that the apparatus was defective, and again the defendant sent the mechanic to examine it and to repair the defect. The mechanic discovered that, since his former visit, the apparatus had been misused and damaged. He repaired the damage that he then found, and such repair having been completed, the concrete mixer was then in proper condition to do the work for which it was intended. Employees of the contractor later loaded the hopper, and an employee of the contractor, using the mechanical devices attached to the apparatus, raised the loaded .hopper, intending to dump the load into the cylinder. Such employee had failed to turn the cylinder into proper position for receiving the load from the hopper. Such employee might have caused such loaded hopper to remain raised by use of the clutch or by use of a brake or by adjusting a dog. While the loaded hopper was in such raised position, August Tillert, an employee of the contractor, stepped under-the raised hopper to scrape stones and gravel from the ground. The operator of the apparatus shouted to Tillert to warn him of his apparent danger, if and when the hopper should come down to the ground. The noise of the operation of the apparatus was such that Tillert did not hear the warning, whereupon the operator tried to reach him with his hand, even picking up a pail to strike him, in order to give him a warning. While the operator was engaged in trying to warn Tillert of his danger, he lost control of the apparatus and the hopper fell upon Tillert, causing him injury. At the time Tillert was injured the concrete mixer was fit for the purpose for which it was intended. One of the proximate causes of Tillert's injuries was negligence of an employee of the contractor. Tillert was guilty of contributory negligence that was a proximate cause of his injuries. Judgment may be entered in favor of the defendant in each case.

BORDON, J. The general rule is that a municipal corpora tion possesses no power to become a purchaser at an authorized sale of land by it for the nonpayment of taxes, and such sale to the municipality would be void without express power conferred by statute or charter. 3 McQuillin, Municipal Corporations (2d ed. 1928) §1209. It cannot, however, be said that there is anything inherently wrong when it is done in good faith; it is simply against public policy. The Legislature, however, speaking for the State, may enact legislation to regulate the conduct of municipalities, or to correct errors made by them in the conduct of their business. As long as the Legislature could have given the town the power to purchase in the first place, the Court feels that it can confirm rhat right by suitable legislation after the purchase. In deciding this question, the Court appreciates its importance to conveyancers and title searchers. It is hoped that the parties will deem it advisable to seek the opinion of our Supreme Court. This Court does not feel, however, that it should treat lightly a legislative enactment intended to validate a doubtful municipal act. It seems to the Court that the supreme law making body of our State possesses such power. The demurrer is overruled.

MUNGER, J. The facts have been presented by stipulation. It appears that the Edwards Overall Cleaning Company op' erated prior to the date of the action an enterprise in which the company solicited customers who wished to have work of cleaning done on clothes. This company went into bankruptcy and the plaintiff purchased from the trustee all of the assets. In the bill of sale conveying these assets the following language was used: "All the routes, customers and good will attached to the business." Before .the company went into bankruptcy the defendant was employed as.a driver by it whose duty was to solicit and service the customers of the company. His employment, of course, came to an end when the company was dissolved. After the purchase of the assets of the company, the plaintiff eim ployed the defendant to perform the same service for him which he had formerly performed for the overall company. There was no list of customers in existence when the assets were sold to the plaintiff, but after the defendant's employment began he gave to the plaintiff from memory a list of the customers that he knew of and had been in the habit of serving. After remaining in' the employ of the plaintiff for some time the defendant left his employment and began to conduct a business for himself of a similar character and he thereupon commenced to solicit and did secure business from some of the customers on the list which has been referred to and served said customers, these being the same as he had been serving while in the employ of the overall company. The facts disclose that this solicitation was not done by any misrepresentation on the part of the defendant and no fraud is claimed on his part. The case has been withdrawn against the defendant Somak and it remains only to consider whether the plaintiff is entitled to a judgment enjoining the defendant Mendelsohn from con' tinuing to solicit the customers whose names he had given to the plaintiff and of whom he had gained knowledge while an employee of the overall company. The plaintiff claims an injunction upon that principle of law which forbids unfair competition. Equity will enjoin the com' mission of acts which are against good conscience in certain cases and result by means of unfair competition in injury to another. There is conflict of authorities as to when the writ should issue, but the very great weight of authority in my opinion points to the conclusion that on the facts in the instant case the plaintiff is not entitled to the relief that is sought. In Roessler vs. Burwell, 119 Conn. 289, our court sustained an injunction in a case where there was a written contract by the employee not to compete in a certain territory for a definite period of time. The contract was held to be reasonable and therefore valid. It is now sought to enjoin the defendant permanently in a case where there was no restrictive covenant not to engage in business on his own account. The plaintiff seems to find some authority for his position in the case of Empire Steam Laundry vs. Lozier, 165 Cal. 95, but there is in fact a distinction between that case and the one involved, for in it the defendant acquired information as to the names of the customers solicited while in the employ of the plaintiff. This case was not followed in one which presents a very complete examination of the authorities and principles relevant to the issue. Progress Laundry Co. vs. Hamilton, 208 Ky. 348. The California rule is not followed in Georgia, Maryland, Minnesota and Kansas as pointed out in the Kentucky case. This case supports the principle stated in Eldorado Laundry Co. vs. Ford, 174 Ark. 104, 294 S.W. 393, that the names of customers of a laundry learned by a former employee while working on a laundry route, do not constitute a "trade secret", such as would be protected by injunction at the instance of the former employer to prevent the driver from soliciting patronage of such persons for a rival laundry. The position of the plaintiff is not supported by those authorities which follow the principle expressed in Lewitter vs. Adler, 101 N.J. Eq. 74, 137 Atl. 541. It is there held that the law distinguishes between an employee pirating his employer's trade by fraudulent means, and honestly competing with him for it. This was the case of a former employee who was a window cleaner and upon going into business for himself he was not restrained from soliciting customers whose names he had learned in his former employment. In the instant case it is to be observed that there was no contract relation whatever between plaintiff and defendant upon the purchase of the assets of the overall company. The de fendant here is not soliciting any customers with whose names he became acquainted while in the employ of the plaintiff, a fáct which is perhaps of controlling importance. In Nims, Unfair Competition and Trademarks (2d ed( 1917) §150, it says: "Not all contracts of employment will sustain an injunction of this sort. Actual knowledge of bus" iness secrets on the part of the employee, acquired from his employment is essential, and it must be knowledge of some facts known only to the employer or those in his confidence or under contract with him." In Cottrell vs. Babcock Printing Press Mfg. Co., 54 Conn. 122, the precise question in the instant case was not raised but the opinion nevertheless points strongly to the approval of the rule which would deny to the plaintiff the relief sought. I think upon the facts agreed upon and upon the clear weight of authorities, the plaintiff does not make out a case. Judg' ment must be rendered for the defendant.

Memorandum of decision on motion to set verdict aside. O'SULLIVAN, J. The plaintiff was injured while riding as a passenger on one of the defendants' trains as it was in the process of slowing down to stop at the Stamford station. While in the act of getting up from his seat, he found his foot caught in the footrail and in trying to liberate it he lost his balance and fell across the aisle, striking his elbow against a metal part of the opposite seat, which caused a small piece of bone to be chipped from the olecranon process. The negligence on which the plaintiff relied, although ex' pressed in various ways, was conceded by his counsel to fall within four specifications. These were: 1. That the train came to a sudden and violent stop; 2. That the footrail was defective; 3. That the defendants had failed -to inspect the defective footrail; 4. And that a combination of the three foregoing specifications established negligent conduct on the part of the defendants. The last specification, of course, may be eliminated from consideration if none of the other three were established. And as to the third, that too may be ignored unless the second was proven, for, if the footrail was sufficiently safe to meet the degree of care required of the defendants, a failure to inspect, even if deemed negligent, could not possibly have been the proximate cause of the plaintiff's accident. This leaves for consideration the first two specifications, which actually cover the real claims of negligence. The first is that the train came to a sudden and violent stop. From a strictly technical angle, this was not established because all the testimony on the subject ran to the effect that the train was still in motion when the mishap occurred. But such a strict position, it seems to me, should not be entertained. After all, what the plaintiff was endeavoring to allege was that there was a sudden and violent jolt in the movement of the train from which one might infer negligence. But to permit this inference, something more is necessary than proof of a jolt. Every one knows that no train can be operated without a certain amount of jolting, jarring and lurching. It is an incident of railroad travel. The difference between a jolt that is the normal incident of travel and those that are so much more abrupt and unusual as to give rise to an inference of negligence is a difference of degree. Rosenthal vs. New York, N. H. & H. R. Co., 88 Conn. 65, 67. However, there must be some proof to support the inference. The transcript is barren of any testimony characterizing by descriptive language the type of jolt of which the plaintiff complained. The most that any witness said (and the sole witnesses on the matter were the plaintiff and his companion) was that there was a jolt or lurch. In this respect, the present case is vastly different from those where the jolt was described as "an awful jar", "threw me forward", "gave us a very big jar, I never saw anything like it." Rosenthal vs. New York, N. H. & H. R. Co., supra. In addition to the oral testimony, the only other available evidence claimed to indicate an unusual jolt was the physical fact of the plaintiff's fall. Such an element is proper to consider. The circumstances surrounding the fall were described by the plaintiff in the following manner: "I put my left foot to the aisle, put my hand on the back of the seat in front because the seat was approximately about the level of my eyes and pulled myself up and turned in order to go back, and, when I did that, I found my right foot was hooked between ' the—my foot was on the foot rest but my toe was underneath the seat where there is some sort of machinery— mechanism—and I stood up and turned around and this foot was caught, so I - tried to pull it, and it was wedged, so I began to slide it and finally freed the foot and, at the same time, I fell in the aisle and struck the other seat with my arm." There was no evidence that any other passenger was discommoded or lurched about, although at the time the jolt occurred, at least six persons were standing in the aisle adjacent to the plaintiff's seat. Indeed, the plaintiff stated that while he thought a jolt had occurred, it had nothing to do with his fall. It is true, of course, that this opinion of his would not preclude him from asserting that a jolt contributed to his fall. Kanopka vs. Kanopka, 113 Conn. 30. But the burden still was his to prove through others that the jolt was of such a -type that might reasonably indicate' negligence. But from all of the evidence and from all reasonable and permissible inferences, the most that the jury could reasonably have concluded as to the jolt was that it was severe enough to throw off balance a man standing on his left foot who was attempting to arise and turn around, while his right foot was still caught in the footrail. High-as is the care required of a carrier, it goes to no such extreme as to demand the elimination of jolts of sufficient intensity to throw off balance one standing in an acrobatic position. Hence, it follows that the jury could not reasonably have determined that the first specification of negligence was established. . The other specification which demands attention is that the footrail was defective. Here again, the only testimony as to its condition, save that offered by the defendants, came from the plaintiff. "Q—Dr. Paley, there was nothing defective or wrong— defective about the condition of the foot rest or seat, was there? A—No, sir." The defendants offered evidence that the footrail was of modern and standard construction and was of the type in use on such railroad systems as the Chicago 6? Northwestern, Southern Pacific, Union Pacific, Northern Pacific, Pennsylvania, Delaware 6? Hudson, Santa Fe, Burlington, Grand Trunk, Canadian Pacific and Canadian National. This evidence was not controverted nor was the witness who testified to this effect cross-examined by even a single question on the subject. If the jury accepted this evidence—and no reason can be advanced why they should not have done so—it would indicate that these defendants had provided passage for the plaintiff in a relatively new coach whose seats were equipped with footrails of the most approved type in general use by those engaged in similar lines of activities. Under such circumstances, it is difficult to see how the reasonable mind could classify as negligent the use of the footrail in question. Werbowlsky vs. Fort Wayne & Elmwood Ry. Co., 86 Mich. 236, 48 N.W. 1097; Crowe vs. Michigan Central R. Co., 142 Mich. 692, 106 N.W. 395; Adduci vs. Boston Elevated Ry. Co., 215 Mass. 336, 102 N.E. 315; Perkins vs. Bay State Street Ry. Co., 223 Mass. 235, 111 N.E. 717; Byron vs. Public Service Co-ordinated Transport, 122 N.J.L. 451, 5 Atl. (2d) 483. The burden of proving negligence rested on the. plaintiff. This burden was not met by establishing that an accident had occurred. Perkins vs. Bay State Street Ry. Co., supra. No one testified that the footrail was defective or out of repair or that its construction was improper. The jury was justified in concluding that the plaintiff's foot became caught by reason of his placing his toe under the rail and attempting to arise without removing it. Indeed, the only logical explanation of the mishap can be found in the extraordinary manner in which the plaintiff endeavored to leave his seat. What he said on that score bears repetition. "I put my left foot to the aisle, put my hand on the back of the seat in front. . . .and pulled myself up and turned in order to go back, and, when I did that, I found my right foot was hooked.... underneath the seat, and I stood up and turned around and this foot was caught, so I tried to pull it, and it was wedged, so I began to slide it and finally freed the foot and, at the same time, I fell in the aisle." The. duty of the defendants was to use the highest degree of care to maintain reasonably safe footrails for their passengers. To hold that that duty required a footrail so constructed as to prevent any possible accident to a passenger arising as did the plaintiff would make them insurers. As the jury could not reasonably have concluded that the defendants were negligent, it is unnecessary to discuss whether, as a matter of law, the plaintiff was guilty of contributory negligence. The verdict is set aside.

Memorandum- of decision in habeas corpus action. O'SULLIVAN, J. On September 16, 1942, this court, on the sworn application of the plaintiff, caused to be issued a writ of habeas corpus. The defendant filed his return alleging that, as warden of the Connecticut State Prison, he held Moulthrop in custody by virtue of a mittimus predicated on a judgment of the Superior Court entered on January 19, 1932. To this, the plaintiff filed a "pleading" which, though extreme' ly informal, will be treated as one properly raising his griev' anees. The defendant replied to this so'called pleading by admitting certain allegations and denying others and by adding special matter alleging res judicata. This affirmative matter has not been denied but it will be examined as though it were. These are the facts: On January 19, 1932, Moulthrop was. sentenced by the Superior Court to imprisonment in the State Prison for not less than two nor more than four years on one count of an information, and for two years on each of four other counts, the sentences to run consecutively. By virtue of a mittimus thereafter issued, the defendant received Moulthrop at the prison and there held him in custody until June 8, 1937, when he was released on parole. At that time he had served five years, four months and nineteen days during which he had earned, as the result of his behavior, 470 days of good time. While on parole, he earned an additional 270 days. On June 8, 1940, having violated his' parole, he was ordered back to prison. Two days later he was returned and has ever since then been in confinement. On-July 3, 1940, the Board of Parole, upon the report of the warden, ordered forfeited 730 of the 740 days of good time standing to his credit: Since his return, he has earned 7^2 days each month. If his earned time had not been forfeited, he would be entitled to his discharge. There are two legal problems to be considered. The first presents'the question whether the doctrine of res judicata precludes the plaintiff from further pressing his claim of illegal confinement. It appears that on February 25, 1941, upon Moulthrop's application, this court issued a writ of habeas corpus and the merit of his claim was heard on an agreed state of facts identical with the facts of the instant case. (File No. 64801; Hartford County, Superior Court.)' Judgment was entered for the defendant, the file reciting that "the court having heard the parties on an agreed statement of facts and having fully inquired into the cause of said imprisonment, finds the issues for the defendant." Within two weeks after judgment entered, Moulthrop sued out another writ of habeas corpus, and upon a similar set of facts as those found in the prior case, it was ordered that he be released for reasons set forth in an opinion of the Supreme Court of Errors, to which the defendant later appealed. Moulthrop vs. Walker, 129 Conn. 164. Error was found, and the case was remanded with directions to dismiss the writ. There is now before the court a' third writ and quite naturally the query arises as to whether or not res judicata is applicable. "It is an established rule in the administration of justice that all controversies between parties once litigated and fully and impartially determined shall cease." Sargent & Co. vs. New Haven Steamboat Co., 65 Conn. 116, 126, quoting from Munson vs. Munson, 30 Conn. 425, 433. However, a different rule seems to prevail where writs of habeas corpus are involved. At common law the doctrine does not extend to decisions refusing to discharge a prisoner. State ex rel. Shapiro vs. Wall, 187 Minn. 246, 244 N.W. 811. The state courts generally have accepted this rule when not modified by statute. In re Breck, 252 Mo. 302, 158 S.W. 843; Knapp vs. Tolan, 26 N.D. 23, 142 N.W. 915; Miskimmins vs. Shaver, 8 Wyo. 392, 58 Pac. 411. This rule, it might be added, is applicable only when the writ is one for liberty as distinguished from those cases where the custody of children is involved. Consequently, even on the assumption that the claim of the prisoner has previously been passed upon, it is no bar to the present action. His claim, as I understand it, is that the Board of Parole could not order the forfeiture of his good time because the statute in force at the time of his conviction provided for a forfeiture of earned time only for a "serious act of insubordination or persistent refusal to conform to prison regulations occurring at any time during his confinement in said prison." (Italics added, Supp. [1931] §329a [Cum. Supp. (1935) §783c].) He then points out that whatever infraction he was guilty of occurred, not while he was confined in prison, but while he was at liberty under parole. This argument appears to have been answered already. "These provisions for diminution of sentence by good time earned became incidents to the sentence imposed upon the plaintiff. They gave him a right to earn a diminution of his sentence but conditioned that right by providing that it might be forfeited by certain misconduct or by violation of his parole resulting in an order for his return to the prison, if, as provided in §1471e [Supp. (1937) §869d], the warden and board of directors should determine that there should be such a forfeiture. If a prisoner or parolee commits an act resulting in a forfeiture of good time earned, in accordance with the provisions of the statutes, his right to a deminution of the sentence is destroyed." Moulthrop vs. Walter, supra, p. 167. This excerpt from the opinion of the appellate court is based, I take it, on our conception of the character of the right to earn good time which a prisoner enjoys. While it is referred to as a right, it is not vested, but partakes of,the nature of one of favor or grace. Anno. 127 A.L.R. 1203. Being a matter of privilege and not of unforfeitable right, statutes passed subsequent to sentence which affect the reten' tion of earned time are not obnoxious as being in contravention of constitutional provisions. We are not here concerned with a statute which cancels earned time, but with one which pro' vides that the future conduct of a prisoner may furnish ground for a forfeiture. It so happened that not until Moulthrop was placed on parole did the Legislature pass section 869d of the 1937 Sup' plement to the General Statutes. This statute reads: "Any paroled convict who has been or shall be returned to said prison for violation of his parole may be retained in said prison for a period equal to the unexpired portion of the term of his sen' tence at the date of the request or order for his return less any commutation or diminution of his sentence earned except .as the warden and board of directors may, in their discretion, determine that he shall forfeit any or all of such- earned time. . . . .Each prisoner or paroled convict. . . .shall be subject to .loss of all or any portion of time earned if he shall commit any serious act of insubordination or persistent refusal to con' :form to prison or parole regulations either at any time during 'his confinement or at any time during the full term of his -parole." As the privilege' of earning good time was an incident to iMoulthrop's sentence, just so were the provisions of existing .statutes and those subsequently enacted incidents of his parole, at least in so far as they did not arbitrarily destroy good time previously earned but were to become effective only upon his future conduct while on parole. By way of illustration, it might be observed that if the Legislature, after Moulthrop's parole began, provided for a greater measure of earned time than that established by law at the beginning of his parole, he would, it seems to me, be entitled to the additional advantage afforded by the new legislation and undoubtedly he would be the first to claim so. Therefore, section 869d became an incident of his parole .and acting under its provisions, the board was entitled to take the action it did. The writ is dismissed and the plaintiff is remanded to the •custody of the defendant.

O'SULLIVAN, J. Within a few months after her marriage to the defendant in 1930, the plaintiff learned that her husband was still married to another woman. Nevertheless, she continued to live with him for several years as his wife. In the meantime, wife number one obtained a decree of divorce. The plaintiff seeks in the present action to have declared void her own marriage to the defendant. The marriage of a man and woman, where either has by a prior marriage a spouse, who is then living and undivorced, is void and not merely voidable. Swift's Digest, p. 19; Hunt vs. Hunt, 252 Ill. App. 490. While there is some authority that, under conditions analogous to those involved herein, the plaintiff is estopped to seek an annulment of her marriage, the better reasoning of other precedents is to the contrary. The rule of pari delicto and the equitable principle of unclean hands are not applicable, because the State is an interested party. Obviously, there is no valid marriage between plaintiff and defendant. It was void at its inception and the subsequent divorce granted to wife number one cannot put life into a status that never existed. For a court to refuse, through the application of estoppel, to characterise what in fact the purported marriage was— especially where there is no issue—is inconsistent in that it permits to continue, at least in name and notoriety, a status which by statute the State condemns and penalises. The pros and the cons of the law are to be found in Schouler, Domestic Relations (6th ed.) §1133; Hunt vs. Hunt, 252 Ill. App. 490; Tefft vs. Tefft, 35 Ind. 44; Simmons vs. Simmons,— App. D.C.—, 19 F. (2d) 690; Taylor vs. Taylor, 173 N. Y. 266; Stokes vs. Stokes, 198 id. 301; Turner vs. Turner, 189 Mass. 373; Anno. 54 A.L.R. 80. Accordingly, the purported marriage of the plaintiff to the defendant is declared void and is annulled. Plaintiff's name is changed to Doris O'Dette.

QUINLAN, J. The plaintiff calls in question in this pro' ceeding certain actions of the State Highway Commissioner assessing damages to a part of a certain tract of land of the plaintiff consisting of about 32 acres on which are located a small and a large house, a swimming pool, trees and a stream of water. The action attacked is claimed to have been taken by the Commissioner pursuant to legislative enactments claimed by him to give the right of condemnation. The legislative acts need not be set forth, but are referred to as: Chapter 282 of the Public Acts of 1927. Special Acts (1931) No. 314, entitled: "An Act Providing for a Highway from Stratford to the New York and Con' necticut State Line and Including said Highway in Trunk Line System." Special Acts (1931) No. 498, entitled: "An Act Making an Appropriation for the Merritt Highway." Special Acts (1931) No. 408, entitled: "An Act Creating the Merritt Highway Commission." Special Acts (1933) No. 379, authorizing the lay-out of the trunk line highway referred to in chapter 282 of the Public Acts of 1927. Section 537c of the Cumulative Supplement to the General Statutes (1935), entitled: "Merritt Parkway." . Section 1528 of the General Statutes, Revision of 1930, entitled: "Damages and Benefits for Improvements." Plaintiff claims from the foregoing that the Merritt Parkway is not a trunk line highway and that accordingly the last named act referred to has no application, and that as a consequence the Highway Commissioner has no right to condemn. While I am heartily in accord with the claim of the plaintiff that no court action, whether with reference to a statute or otherwise, should be determined on the basis of public need and expediency or local conditions, I nevertheless feel that the above legislation, taken together, places this road in the trunk line system and that the entire legislation is in harmony. And, moreover, section 4 of the 1933 Act contains the language "and all provisions of the statutes relating to trunk line highways shall apply to such layout or highway." A parkway can be a highway, and it is a matter of common knowledge that the vision of those who foresaw its need was always accompanied, in the earliest plans of that highway, with the intention of complementing the Hutchinson Parkway and extending that highway by a parkway system into Connecticut. If it is a trunk line highway and I so hold, then there is a right in the Highway Commissioner to condemn. If there is a right to condemn, is the plaintiff entitled to an injunction? This will depend to a large extent upon whether he has an adequate remedy at law. The certificate of condemnation covered 9.21 acres of land and an assessment of $8,780,67 for the plaintiff, and the land described therein contained the two buildings above referred to, the swimming pool, etc. This land lies between two other pieces of acreage, and separated from each other by the taken land. The plaintiff claims that this causes the two separated pieces to be nomaccessible to a highway and on that account there is a confiscation of that land without compensation. Section 1528 of the General Statutes, Revision of 1930, provides for the taking of any land found necessary for a trunk line layout and for payment of "all damages . re' suiting from such taking", and section 1531 provides for an appeal by any person aggrieved. The State and its agents might well try to avoid the pit' falls of zeal. Because they hold the idea that in certain cases values have been paid out of proportion to the fair value of properties purchased, should not incline them to the opposite extreme. Certainly it would appear that there would be damage as to the southerly portion notwithstanding that in a rough fashion the plaintiff may now go from one plot to the other. There is no highway near or adjoining the southerly part and as the Merritt Highway cannot be utilized by commercial vehicles, the plaintiff, who is in business and carries large stocks of heavy pipe on his premises, obviously suffers in his right of access. This does not mean that this element of damage cannot be recovered in the proceedings on the assessment, and as there is an appeal pending, the plaintiff has an adequate remedy at law. I do not understand that it is even claimed that the defendant committed any answerable act in his individual ca' pacity. Judgment may be entered for the defendants.

FOSTER, J. This action is in three counts claiming a breach of contract and conversion. The complaint is skih fully drawn so as to set forth issues of law and not issues in equity, thus apparently giving the plaintiff the constitutional right to a trial by jury. The first count is by reference made a part of the second count and of the third count. Upon close examination of pleadings and the exhibits at' tached to the complaint, we find that while it is true that issues of law are presented, it is equally true that the predom' inant issue presented is whether or not the defendant should account to the plaintiff and, if so, the rendering of such account. An accounting by the defendant is necessary in order that any judgment of a proper amount be rendered in favor of the plaintiff, or in order that a proper judgment be ren' dered in favor of the defendant. An action for an accounting should be tried to the Court and not to the jury. General Statutes, Revision of 1930, §5624. Justice to plaintiff arid defendant requires that this case be tried to the Court and not to the jury. No judge would be able to decide this case properly without having before him a transcript of the evidence; much less would a jury be able to render a proper decision from memory of the evidence. As was said by our Supreme Court of Errors: "No action for an accounting, or one of this character, should be tried to the jury. It imposes upon a jury an impossible task, to expect them to carry in memory the details of a case of this character. It is unfair to a litigant to have his case determ' ined by a tribunal which cannot fulfil that duty with accuracy or justice, however intelligent and desirous of doing their full duty the tribunal may be." Bennett vs. United Lumber & Supply Co., 110 Conn. 536, 538. In this case there are certain issues that might be tried to the jury; but there are certain other issues that should only be tried to the jury by consent of the parties or order of Court. The plaintiff filed a general claim that the case be placed on the jury docket. The Court, upon motion of the defend' ant, struck the case from the jury docket. No claim has been made that certain specific issues of a legal nature as dis' tinguished from the equitable nature be tried to the jury. The Court has made no order that the entire case be placed upon the jury docket, nor has the defendant consented to such disposition. The motion that the case be restored to the jury docket is denied.

QUINLAN, J. The Court (Dickenson, J.) allowed the plaintiff to file an amendment, after a demurrer was sustained to an allegation of a breach of a statute (Gen. Stat. 1930 §6282) to the effect that "the defendant was negligent in providing the plaintiff with roller skates and allowing her to skate on its rink." So that any injury claimed to have been sustained must have been the proximate result of providing the plaintiff with roller skates and allowing her to skate. The Court (Simpson, J.) in sustaining the aforesaid demurrer said: "There is no prohibition against allowing such a child to .skate on roller skates, which in itself is ordinarily a harmless amuse' ment for children of tender years." I agree that it is thej experience of most parents to the extent of being common knowledge, that children much more youthful than plaintiff engage in the sport of roller skating, as they do in ice skating. If many of these sports were not begun early in life, they would rarely be done with skill and accomplishment. In the development of the human race sports involving danger and severe bodily contact must be experienced. As was said on the demurrer, the statute had nothing to do with the physical risk involved. It is plain that the Legislature would not have grouped such a place with dance houses and concert saloons, which could be plainly harmful to a child's morals. Yet the plaintiff has persisted in including reference to the statute, as if that added something to the liability. So that first, this claim was predicated on a violation of the statute. When that failed, it was based on a reference to the statute in connection with the allegation which Judge Dickenson authorised, and finally on the day of trial a further amendment was filed describing the floor as highly waxed and polished, but not altering the allegations of negligence. The indefiniteness of the young ladies in their demeanor on the stand as to this question convinces me of the truth of the claim that the floor was never waxed. The girl fell as she released her hold of another girl friend's hand. It was a pure accident, such as was likely to happen to any person who roller skates and these things are always unfortunate, but it does not mean that some one should pay for the effects. If a parent desires to protect a child, it can best be done by such supervision as will avoid permission to a child, particularly a girl of this plaintiff's age, to go out in the night season. Judgment for the defendant.

McEVOY, J. As the pleadings now stand, the record shows that on August 16, 1938, a demurrer was filed on behalf of the respondent and that, on the same day, August 16, 1938, a return was filed on behalf of the respondent. It would thus appear that both the demurrer and the return are, ostensibly at least, pending at the same time. The purpose of a writ of habeas corpus is to obtain speedy and determinative action. This rule is particularly applicable to the present case. It would seem expedient to decide the matter upon the merits and, passing over whatever merit there may be in the demurrer, it is decided upon the allegations con tained in the writ in connection with the return. The facts are not in dispute. On May 6, 1930, William Brown was convicted of the crime of statutory burglary in the Superior Court for New London County and was duly sentenced by that court to an indeterminate sentence in the Connecticut State Reformatory at Cheshire, and he was committed to the reformatory and remained there until the 25th day of January, 1932. On that day he was paroled. Subsequently, and while on parole from the reformatory he was convicted on the 12th day of October, 1932, of the crime of receiving stolen goods and was sentenced to and served a period of 30 days in the New London County Jail; on September 21, 1937, he was convicted of the crime of breaking and entering in the night season in the Superior Court for New London County and was sentenced to and did serve ten months in the New London County Jail; thereafter, on the 28th day of May, 1938, he was convicted of the crime of statutory burglary and was sentenced to serve three months in the New London County Jail, which term he served with the exception of the allowance of 15 days for good behavior, thus completing that sentence on the 10th day of August, 1938. On October 21, 1937, a warrant was issued by the superintendent of the Connecticut State Reformatory as the agent of its board of parole for the arrest and return to the reformatory of William Brown, designated as 3164, for the purpose of requiring him "to serve as much of the remainder of his sentence as the State Board of Parole shall hereafter determine." This warrant was duly issued in proper form and order. William Brown is now being held in the County Jail of New London by John J. Sweeney in his capacity as sheriff of New London County by virtue of the warrant issued by the State Reformatory. William Brown is being held in no other way and for no other reason than by virtue of the warrant issued by the State Reformatory at Cheshire. William Brown was originally convicted on May 6, 1930. The maximum time during which his indeterminate sentence might run, under the provisions of the law, was five years. If he had served that full time, his sentence would have expired on May 6, 1935. Before the expiration of that sentence he was, in the exercise of the discretion vested in the board of parole of the Connecticut State Reformatory, paroled. The purpose of parole is to enable the person placed upon parole to be free from actual physical confinement and to be at large, and, under those circumstances, to attempt, with the cooperation of the interested officials, to rehabilitate him' self as a member of society. Under these circumstances, if William Brown had observed the provisions of the parole, he would not now be in confinement. Not only did he not ob' serve the provisions of the parole, but he committed other offenses while on parole and for each one of these offenses he was apprehended and punished, in accordance with the law. It is claimed, on behalf of William Brown, that the rearrest and present confinement of William Brown is a violation of the provisions of section 6559 of the General Statutes, Revision of 1930—at least it is claimed that this is so by analogy, if not directly. It should be observed, however, that the statute provides, substantially, that "No person shall be prosecuted . . . except within five years next after the offense shall have been com' mitted. . " That section in its last three lines further pro' vides that "when any . . . information or complaint for any crime may be brought within any other time than is limited by this section, it shall be brought within such time." The plain meaning of said section 6559 is that criminal pro' • ceedings must be "commenced" within the statutory time, State vs. Ward, 49 Conn. 429, 437. This proceeding, was within the meaning of section 6559, supra, commenced within the statutory time. The Legislature has seen fit to invest the directors of the State Reformatory with a very wide discretion in their treat' ment of those sentenced to that institution. Even the most cursory reading of section 1836 of the General Statutes, Re' vision of 1930, indicates its intention. In the first place it is provided, in the first sentence of that section, that "any in' mate of the reformatory may be paroled in the discretion of a majority of the board of directors . . . and the superintendent . . . under such rules and regulations as it may establish." Supplementing this provision, it is further provided in the second sentence of that section that "While upon parole, such inmates shall remain in the legal custody and under the con' trol of the reformatory board of parole and may at any time be taken back to the reformatory for any reason that shall seem sufficient to such board." Under the provisions of section 1822 of the General Statutes, Revision of 1930, the meaning of the term "inmates" is definitely defined so that it "shall include all persons sentenced to the reformatory, until released from its control, including persons on parole." It would therefore appear that, for all practical purposes at least, William Brown was still an "inmate" of the reformatory during the whole term of his parole and while he was committing; the various crimes which he did commit subsequent to the time when he was originally placed upon parole. Coming back to section 1836, supra, it should be observed that, in order to carry out the very apparent purpose of the act, the reformatory board of parole is not limited upon the question of parole as to time, because it is specifically provided in that section that the "inmate . . . may at any time be taken back to the reformatory . . ." The use of the words "at any time" indicates a definite purpose that the parole board shall be practically unlimited in its attempt to reform and restore the "inmate" to a place in society, if possible. This broad intent is further indicated by the subsequent use of the words "for any reason that shall seem sufficient to the board." The use of those words indicates that the Legislature intended that the parole board should have every opportunity for the most minute and exact supervision. It is further provided in that section that "the police officers, constables and sheriffs shall arrest and hold any paroled inmate when so requested, without any written warrant." The use of those words "without any written warrant" tends to confirm the meaning of section 1822, supra, that the "inmate", although on parole, is still an "inmate." "The law does not require useless formalities, and instructions to the state prison officials to hold such a prisoner upon the completion of his sentence to the prison, as an inmate of the reformatory transferred to it, would be effective and valid." Glazier vs. Read, 116 Conn. 136, 141. "The regulations of the reformatory referred to in the statute include not only the regulations for the control of the inmates within the walls of the reformatory but also those which govern their conduct while upon parole." Ibid. 140. "Upon the return of an inmate for breach of parole, the time he has been upon parole before his return is not counted in determining the period he has served." Ibid. 142. It should be observed that William Brown was placed upon "parole" and not upon "probation." The expressed intent of the Legislature in enacting section 1836 of the General Statutes, Revision of 1930, is shown by a comparison of that section with the provisions of section 6518 of the General Statutes, Revision of 1930, which has to do with probation. There the term of probation is specifically limited to one year. This is to be contrasted with the express provisions of section 1836 where it is definitely stated that the inmate may "at any time" be taken back to the reformatory. It is claimed that the decision in People ex rel. Kohler vs. Kidney, 223 N.Y. 666, is determinative of the present action. The writ was sustained in that case because the petitioner "was never arrested by virtue of a parole warrant as required by section 217 of the Prison Law." It is true that, after deciding the case upon that valid ground, the court went further and said (p. 667): "that when brought before the prison board his (the petitioner's) maxi' mum sentence under the original charge had expired and, therefore, all authority over him as a parole prisoner had ended . . ." That decision was of course rendered under the provisions of the law of New York. It is apparent that that law was not the same as the Connecticut law, and par' ticularly that the New York law differed from the provisions of section 1836, supra. When William Brown was permitted to go at large upon parole, his future fate was then left entirely in his hands, instructions given to him, he could remain at liberty. If not, If he fairly complied with the provisions of parole and the he was still an "inmate" and could be actually physically con' fined at any time within the discretion of the reformatory board of parole., He elected not to comply with the provi' sions of parole. This election was a waiver. A waiver is a voluntary relinquishment of a known right. His position was not unlike that of the petitioner in the case of Cappola vs. Platt, 123 Conn. 38, where, at page 41, our Supreme Court said: "That he received permission from the probation officer to come to Connecticut made his entry to this State no less a voluntary act, and when he violated here the terms of his parole he voluntarily surrendered the benefit of clemency which had been extended to him." This case differs from Ex parte Wernhause, 202 Mo. App. 245, 216 S.W. 548, cited in the case of Cappola vs. Platt, because an examination of the record in that case shows that previous to the time when Wernhause was claimed to have become a fugitive from justice that he had, in fact as well as in law, made his peace with the probation officer and the other officials by paying the entire sum of one thousand dollars, as restitution for the money which he had taken, and that, when he made the final payment of $450.00, as restitution, he was given a receipt in full and he was then expressly re' leased. That case, therefore, is not in point. If the writ were sustained in the present case, it would seriously interfere with the fundamental purpose and the func' tion of the board of parole of the State Reformatory, and it would also prejudice the opportunity, of which an inmate of the reformatory may avail himself under the broad provisions of the parole system. The tendency should be to sustain and encourage the board of parole to cooperate with those placed in this institution and not to discourage such action. In this action the petitioner was represented by Robert P. Anderson, Public Defender from New London County, and the respondent by Arthur M. Brown, Esq., State's Attorney for New London County and, since the matter arose in New London County, the papers are being filed with the Clerk of the Superior Court for that county and will be lodged there. For all the reasons stated, the writ is dismissed, and judg' ment may enter accordingly.

O'SULLIVAN, J. The complaint sets forth the typical cause of action based on negligence and the case would be of the run-of-the-mine variety, were it not for a special defense alleging that the plaintiff, being an employee of the defendants, is limited in her remedy to that comprehended by the Workmen's Compensation Act. By stipulation, the parties consented to submit to the jury only that phase of the case involving negligence, and, then, should the verdict be for the plaintiff, to permit the Court to determine the merit of the special defense upon an agreed set of facts, and to enter judgment accordingly. If this procedure is novel, it is also desirable in that it will obviate the necessity of a new trial, should the appellate court disagree with the conclusions of the trier. As the jury found for the plaintiff upon the issries referred to them, the plaintiff is entitled to judgment unless the agreed facts involving the special defense preclude her right to recover at common law. These facts are as follows: The.defendants were operating an inn located in Woodbury, known as the Curtis House. Regularly employing more than four employees, they had insured their full liability under part "B" of the Compensation Act with a stock company authorised to take such risks in the State of Connecticut. On June 1, 1937, at New York City, the plaintiff entered into a contract of service or employment with the defendants whereby she agreed to work for them at the Curtis House as a waitress at the stipulated wage of $20 a month, plus her board, room, and tips. The contract provided that the plaintiff was to start work on June 4th and that her pay was to begin on that date. It was further agreed that on June 3rd she would take the 8:30 a.m. train from New York, and upon her arrival at Waterbury one of the defendants would meet her at the station to take her to the Curtis House by automobile where she could get settled in order to be ready to begin work on the following day. She was to purchase her railroad ticket to Waterbury but the defendants were to reimburse her for this expenditure, although such refund was never paid by them or requested by her. She was assured that the work would be permanent in character, although no definite period of employment was agreed upon. None of the parties indicated any refusal to accept part "B" of the Compensation Act of the State of Connecticut. Pursuant to the agreement, the plaintiff reached Waterbury by train at the appointed time and entered a station wagon belonging to the defendants for the purpose of being transported to the Curtis House. While on the way, the driver stopped for a moment at a bank and again at a laundry to pick up several bundles. Thereafter, an accident occurred due solely to the negligence of the driver of the automobile. The plaintiff was injured and $1,000 is fair compensation for her to receive in an action at law. While the contract of employment was entered into at New York, it was to be performed wholly within Connecticut. Hence the Connecticut Compensation Act is applicable and governs the rights and liabilities of the parties. Hopkins vs. Matchless Metal Polish Co., 99 Conn. 457. Counsel for the litigants have argued this case on the theory that the agreement of June 1st created the status of master and servant from that date and hence that the plaintiff was an employee of the defendants, but her position is that she was not in the course of her employment when the stated accident occurred, because her pay and her work were not to begin until the following day. It would seem that the position taken by the litigants concerning the contract Is sound because the contract established the relationship between the parties and not the fact whether work had actually been commenced and the plaintiff had already become entitled to wages. Wabnec vs. Clemons Logging Company, 146 Wash. 469, 263 Pac. 592. Section 5223 of the General Statutes, Revision of 1930, defines an employee as any person who has entered into or works under any contract of service with an employer. An agreed fact is that on June 1st plaintiff entered into a contract of service with the defendants. From then on she was an employee but not necessarily within her employment. Another view of the contract which might have been taken, at least by the plaintiff, is that it was a present agreement for future fulfillment and hence the plaintiff's status was not that of an employee until June 4th. But as'will be pointed out, if it be conceded that she was not an employee on June 1st and June 2nd, she did assume that role when she began her transportation on the 3rd, a reasonable time essential for her to reach the locality of her duties, because she was then performing something incidental to her employment. On either theory as to the interpretation of the contract, the plaintiff was an employee at the time of the accident befalling her. It is undoubtedly the general rule that employees whose area of employment is within defined limits are not regarded as in the course of their employment while going to and returning from work upon the public highways; nor do the risks incident to travel on such highways ordinarily arise out of their employment. This is so because the ordinary contract of employment of a workman to render service at a designated place does not cover his movements outside of that place. He uses the highways as the public uses them, because he must, and not because his employer by the terms or implications of his contract of employment has the right to require him to use them at the employer's will. Lake vs. Bridgeport, 102 Conn. 337, 342. This rule, however, is subject to many exceptions, of which several are classified in Whitney vs. Hazard Lead Works, 105 Conn. 512, 518. One of the exceptions is to be found when transportation is furnished by the em ployer under an express or implied condition of the contract of hiring, as was the fact in the instant case. The employment continues throughout the transportation in case the parties positively or inferentially so stipulate. Pigeon vs. Lane, 80 Conn. 237; Swanson vs. Latham, 92 id. 87; Sala vs. American Sumatra Tobacco Company, 93 id. 82; Flanagan vs. Webster & Webster, 107 id. 502. The cases cited by the plaintiff in opposition to this principle actually support or may easily be distinguished from it. Roth vs. Adirondack Co., 183 N.Y.S. 717, 195 App. Div. 303; Meo vs. Bloomgarden, 261 N.Y.S. 279, 237 App. Div. 325; Heitz vs. Ruppert, 218 N.Y. 148, 153, 112 N.E. 750, 751; L.R.A. 1917A, 344; Matter of Kowalek vs. New York Cons. R. R. Co., 229 N.L. 489, 492, 128 N.E. 888, 889; Matter of Littler vs. Fuller Co., 223 N.Y. 369, 119 N.E. 554; Van Gee vs. Korts, 252 N.Y. 241, 169 N.E. 370. The plaintiff was in a conveyance which her employer had expressly agreed to provide for her to reach the locality of her work. She was being transported by virtue of an express agreement of the contract made two days previously, which was "something added to the principal part of that contract (of hiring) as a minor, but none the less a real feature or detail of the contract." Donovans Case, 217 Mass. 76, 78. All the prerequisites essential to place her within the course of her employment were present. The accident happened within the period of her employment, at a place where she might reasonably have been, and while she was reasonably fulfilling the duties of her employment or engaged in doing something incidental to it. Larke vs. Hancock Mutual Life Ins. Co., 90 Conn. 303, 308. "If the employee is doing what his employment calls for, and doing it in the way he is ex* pected by the employer to do it, then the injury arises in the course of the employment." Stakonis vs. United Advertising Corp., 110 Conn. 384, 389. Nor does the fact that her pay and actual work were to commence on the following day alter the conclusion. There is a distinction between the period of employment and of work. Flanagan vs. Webster & Webster, supra, at page 507; Holmes vs. Great Northern Railway (1900), 2 Q.B. 409, 83 L.T.R. 44, 2 W.C.C. 19. Nor is it material that during.her transportation the plaintiff was to receive no pay. Employment may exist before actual work begins. Carter vs. Rowe, 92 Conn. 82. "It is true," an excerpt runs in Saba vs. Pioneer Contracting Co., 103 Conn. 559, at page 563, "that the actual employment of these workmen for stated pay did not begin until they arrived on the job and began work, but when an employee mounted the truck at the employer's direction to go to the job, in accord with the employer's contemplation of what his conduct would be in going to the place of the job, he came within the 2;one of his employment as contemplated by his employer. The mere fact that the time spent on the truck was not time for which, by his contract of employment, he was paid for, is immaterial, in view of the facts found." "The period of employment has sometimes been held to, cover a period other than that for which wages are paid." Larke vs. Hancock Mutual Life Ins. Co., supra, at page 308. Passing by the question as to whether the plaintiff was an employee on June 1st and 2nd, it is apparent from the applicable principles of law that when she boarded the train at New York in conformity with an express term of her contract she was within the period of her employment. She was headed for the place of her future work a day in advance, which was reasonably necessary under the circumstances in order that she might have an opportunity to get settled and to look about in preparation for her tasks. Wabnec vs. Clemons Logging Company, supra. The parties raise no question that if the accident occurred within the course of her employment it arose out of the employment. Hence the plaintiff's remedy against these defendants is to receive the benefits of the Compensation Act. She cannot recover in an action at law. Accordingly judgment may enter for the defenants

FOSTER, J. The plaintiff claims in its substituted com' plaint that it manufactured for the defendant a million books of matches, of which it delivered and received payment for a part and is ready to deliver the remainder, but that the defendant refuses to accept or pay for such remainder. The plaintiff bases its claim upon a written order dated December 4, 1934, signed by the defendant and a written acceptance dated February 21, 1935, signed by the plaintiff. The plain' tiff claims that the order and acceptance constitute the con' tract. The defendant in its answer claims by way of special de' fense that by a letter dated November 13, 1934 the plaintiff stated in part "a blanket order for one million may be placed at $3.60 per M, plus 10c per M. extra for the inside imprint, with shipments billed at above price, but if at the end of the maximum time limit of two years, you do not consume that quantity, the balance may be cancelled and the quantity you have consumed in that period of time will be billed you at that quantitys' prevailing price at date of order, in other words if your shipments have been billed to you at a price of $3.70 per M and at the end of the above time, two years, you wish contract cancelled and you have only consumed 6?0,000, an additional invoice of 2?c per M for the 6?0,000 will be sent you." The defendant claims that in accordance with Exhibits 1 and 2 attached to the answer it cancelled the contract and offered the additional money required by the terms of the contract and has made tender of such money and is willing, ready and able to pay such money, but the plaintiff has refused to accept the same. The defendant claims that the contract consists of the letter and price list dated November 13, 1934, the order dated December 4, 1934 and the acceptance dated February 21, 1935. The plaintiff demurs to the special defense of the answer on the ground that the defendant thus attempts to vary by extrinsic evidence a written contract. The claim of the defendant that Exhibits 1 and 2 attached to the answer are part of the contract, if true, constitute a good defense. The demurrer necessarily admits the truth of such allegations in the answer. The defendant by its special defense does not attempt to vary the contract by making any change in the import of the words and figures contained in the order and acceptance, Exhibits A and B attached to the substituted complaint. It claims that Exhibits A and B do not constitute the whole contract; that the whole contract consists of Exhibits A, B, 1 and 2. There is no attempt in the answer to vary the terms of a written contract. The answer raises the issue as to what, constituted the contract—what was the contract between the parties. The question upon this issue is what was the intent of the parties. This cannot be decided upon this demurrer, which by its nature admits the truth of the allegations of the pleadings to which it is addressed. It can only be decided upon evidence adduced at the trial of the case. The demurrer is overruled.

INGLIS, J. In passing on these motions certain general and fundamental considerations must be kept in mind. None of the motions pray that the entire information be stricken out. They are, therefore, more properly motions to expunge than motions to strike out. By whatever name they are denominated, however, it is true in criminal procedure, as it is in civil procedure, that they are to be granted only in the event that the defect in the information is plain. The crime here charged is that of conspiracy. It is charged that all of the accused conspired for an unlawful purpose, .namely, to cheat and defraud the City of Waterbury, and to .accomplish that purpose by unlawful means. It is proper in •such a case to charge not only the conspiracy and the purpose of it but also the overt acts done in pursuance of the conspiracy. And it is also to be borne in mind that, in the case of a conspiracy, each one of the conspirators, no matter when he entered it, is chargeable with all of the acts of all of the other conspirators which are done in furtherance of the con' spiracy. Moreover, in the case of a continuing conspiracy such as is alleged here the statute of limitations does not begin to run until the termination of the conspiracy. It is obviously impossible in a memorandum such as this to discuss all of the multitudinous requests to expunge contained in the various motions separately. An analysis has been made of them and each has received consideration. The most that can be done here is to refer to those which occur most frequently in the motions and those concerning which there might be some question. Each of several of the accused move to expunge allegations setting forth the acts of other accused concerning which it is not alleged that they had any knowledge and with which they say it is apparent that they had no connection. All of those acts are alleged to have been in pursuance of the conspiracy in which, it is alleged that the moving party in each instance was a conspirator. If those allegations are true, each of the accused is chargeable with those acts done by his fellow con' spirators and therefore the allegations as to those acts are properly in the information against him. Most of the accused move to expunge the allegations con' cerning the burning and destruction of books and records because, they say, that is purely evidentiary, because all of the accused did not participate in it, and because, it is claimed, it occurred subsequent to the termination of the conspiracy. It is obvious that these acts are set up in the information as being overt acts done pursuant to the conspiracy and as being a part of the unlawful means of accomplishing the ultimate purpose of the conspiracy. They are, therefore, something more than evidentiary; they are done during the continuance of the conspiracy as a part of it and not after it is terminated; and they are acts with which all of the conspirators are charge' able. The allegations concerning the conferences with Levy in January and February 1938, and the payment to him of money to defray the expenses of his defense, the allegations concern' ing the aiding and abetting of Philip Coppeto to stay out of the State, the allegations concerning the placing of additional locks on doors in the city hall are likewise alleged as being done in pursuance of the conspiracy to defraud. A part of any fraud is the concealment of it from the one defrauded. It is apparent that, whether any of these acts taken by itself is illegal or not, it does form a part of the conspiracy to de' fraud alleged and is alleged as such. For that reason all of those allegations are proper pleading. In the same way, as regards the allegation that O'Connor relinquished to Hayes the power to retain legal counsel for the city, even though that may not be a criminal act in itself, it is alleged to be an unlawful act under the city charter, and in any event is alleged to have been done in pursuance of the conspiracy. It is not essential that every overt act done in furtherance of a conspiracy be even unlawful and if it is an overt act done in furtherance of a conspiracy it is proper to allege it in the information whether unlawful or not. Several of the accused ask that the allegations as to the provisions of the charter and the methods of keeping the books and records of the city be expunged on the ground that they are allegations of law and irrelevant. Technically the pro' visions of a city charter are not public law. At least it is proper to plead them. And, in any event, the allegations of these facts are reasonably necessary to make understandable the allegations as to how these defendants violated the charter provisions and manipulated the books and records so as to accomplish the purposes of their alleged conspiracy. The same is true with reference to the allegations concerning the use of lithographed checks with the facsimile signature of the city clerk which the accused Kelly moves to expunge. The accused Leary moves to expunge ail of the allegations of acts done more than five years before the institution of this action on the ground that those acts are barred by the statute of limitations. As pointed out ab.ove, his contention on that score is not good law. If the conspiracy, as is alleged, is a continuing conspiracy none of the acts done pursuant to it are outlawed. For that reason the allegations as to those acts should not be expunged. Several of the accused object to the allegation that the purpose of the conspiracy was to defraud not only the City of Waterbury but also "the residents and taxpayers thereof." That allegation does not seem to be unduly prejudicial and, in any event, it is warranted because in the last analysis if the city is damaged by the loss of money that loss falls back on the residents and taxpayers of the city. Finally, some of the defendants move to expunge all of the- information except that portion which alleges that a conspiracy was formed for certain unlawful purposes. That is, what they want stricken out are all of the allegations of overt acts done in pursuance of the conspiracy. As noted above, it is proper pleading to allege such overt acts and therefore those allegations should not be expunged. There are several other requests to expunge various matters but in the light of the general considerations set forth in the opening two paragraphs of this memorandum, it is apparent that they must be denied. All of the motions to strike out and all of the motions to-expunge from the information are denied.

QUINLAN, J. Among the facts in this case it appears that the defendant, Louis Mendelsohn, had been an officer and director of Edwards Overall and Cleaning Company. This company went bankrupt and all of its assets were sold to the plaintiff. In the assets were included all the routes, customers and good will. After the purchase Mendelsohn was employed by the plaintiff. I do not find that he was discharged but that he left the plaintiff's employ. It is true that among the documents and papers of the bankrupt there was no list of customers and Mendelsohn furnished a list. After he left plaintiff's employment he solicited some of these customers. He was not under any written contract of employment with the plaintiff. The injunction is asked on the equitable grounds that he possesses confidential information which he was misusing, and that within the law relating to unfair competition, -he should be restrained. While the amount of business actually gained has been slight, the continuance of the solicitation could prove irreparably damaging, as this is a business which depends for its patronage upon the calling at customers' places of business. "That a list of customers who wish the drivers to call for laundry is of special importance to the employer is hardly open to dispute." Colonial Laundries, Inc. vs. Henry, 48 R.I. 332, 335, 138 Atl. 47, 48. Individual initiative and competition far from being discouraged, should be encouraged. The law does not require, however, that an employer need protect himself by contract in a case of this kind. As has been indicated, the list, although purchased by the plaintiff from the bankrupt estate, was actually furnished by the defendant, Mendelsohn. He and his family had, however, been negotiating for a sale to the plaintiff before the bankruptcy. Something which was purchased to the advantage of Mendelsohn's creditors ought to carry with it at least a moral obligation to refrain from interfering with the benefits which it carried. The plaintiff having paid for the business, including the lists, is in the same position as if business effort and advertising had built up this protection as a secret formula. The nature of the business and the method of collecting the laundry did not make it as open a proposition as many businesses do, as was well said in Colonial Laundries, Inc. vs. Henry, 48 R.I. 332, 338, 138 Atl. 47, 49: "There is a distinction between the present and cases of traveling salesmen selling to the trade; their custom is sought from any persons who are engaged in certain lines of business and whose identity may be quickly known to any one who cares to examine a directory or trade index. In cases involving milk, ice, laundry, and tea routes, a list of customers cannot be thus obtained; a definite selected group has been gathered together by the employer, not of persons who may deal with him but who, if not specially solicited otherwise, almost certainly will do so. In trade, generally, the traveling salesman has no assurance of an order unless he can satisfy the customer that his merchandise is cheaper, better or more saleable than his competitors. The customer each time desires to examine, inspect and compare merchandise and prices offered to him. Each sale is a distinct transaction carrying no implication that another will follow. The list of people upon whom he calls has no market value apart from a general good opinion of the employer's methods and goods and prices. A particular laundry route has a definite market sale value. The given customers pay little attention to whose services they receive. The quality of the service rendered is so similar that the customer invites the person rendering the service to call at definite periods and to keep on rendering such service until further notice. There is a business relationship between the customer and the laundry which, unless interfered with, normally will continue." As above indicated, it is not the breach of an express contract, but the breach of a trust, which might be referred to as a contract implied in law, and the relief sought by the application for temporary injunction should be granted until further order of the Court.

Memorandum of decision on demurrer in action by town for reimbursement for relief furnished. McEVOY, J. In this action the Town of Stamford, acting by its selectmen, seeks to recover damages for relief alleged to have been furnished by the town to two residents of that town, Margaret Griffin Field, and her husband, James Field. After the claimed furnishing of the relief to Margaret Field, she died. James Griffin is the administrator of her estate and he is sued in that capacity. The action was, originally, brought in one count which contained five paragraphs. The plaintiff now stands • upon an amended complaint which is made up of five counts, three of which contain five paragraphs and two of which contain eight paragraphs. The defendant has demurred to counts two, three, four and five. In the demurrer to the second count of the amended complaint the defendant assigns as one reason of demurrer that the alleged promise of repayment, claimed by the plaintiff to have been made by the deceased, Margaret Field, was an oral promise to answer for the debt of another and that, therefore, it is within the purview of the Statute óf Frauds. The alleged promise is pleaded in the second paragraph of the second count in this way: that "the plaintiff'gave relief to James Field. . .upon the promise of repayment by the said Margaret Griffin Field." The amplified pleading of the plaintiff now makes it plain that the alleged promise was oral and not in writing. If there is a benefit to the promisor which he did not have before and would not otherwise enjoy and, in addition, the act is done upon his request there ordinarily arises an original undertaking not within the statute. Reed vs. Holcomb, 31 Conn. 360, 363; Bartolotta vs. Calvo, 112 id. 385, 391; Sadd vs. Siegelbaum, 124 id. 383, 385; Meyers vs. Arm, 126 id. 579, 583. The promise, as alleged, was direct and not conditional. It was not .within the purview of section 5982 of the General Statutes, Revision of 1930—the Statute of Frauds. The second ground of demurrer to the third count seems to be that the third count contains an allegation of oral promise as does the second count. The third count contains no allegation of promise, oral or otherwise. Therefore this, apparent, ground of demurrer is not applicable to the third count. The demurrer' to the third count is based, mainly, upon the claim that the written notice set out (Exhibit A) in the plaintiff's pleadings does not disclose the nature of the claim upon which recovery is now sought. The basis of that claim is that, in the claim as originally filed, while the amount upon which recovery is sought is. there set out yet, nevertheless, the contents of Exhibit A, the claim as filed originally, show that the claim was made for relief given to James Field before October 14, 1929, and that the present attempt is to recover for relief given after that date. Paragraph 5 of the third count sets out that the defendant, In writing, disallowed the claim of the plaintiff. This simply means that the defendant disallowed the claim which the defendant made and set out in Exhibit A. The record shows that the defendant was not misled to his prejudice as to the amount or nature of that claim. The record shows that that claim was properly presented to the defendant and that that presentation was conditioned so as to warrant and require that this court recognize it as, substantially, the same claim as is now recited by way of presentation in the pleadings in this court. Mead's Appeal from Probate, 46 Conn. 417, 428; Hammett vs. Starkweather, 47 id. 439; Roth vs. Ravich, 111 id. 649; Duval vs. Birden, 124 id. 43. The demurrer to the third count raises the claim that the amended complaint. does not allege that the beneficiary, 'Margaret Field, died without issue and therefore that this action does not lie. This raises the question of the interpretation and application of the provisions of section 2 5 Of of the Public Acts of 1941. It would seem that the interpretation of that section, since it runs through the whole demurrer, may properly be discussed as applicable to all of the claims in the various counts and reasons of demurrer. One of the main claims seems to be that the provisions of section 2 5 Of should not be construed as having been intended by the Legislature to be retroactive or retrospective. This claim seems to be based upon the theory that section 250f of the Public Acts of 1941 set up and instituted a new and original cause of action. It did not. The italics in section 2 5 Of of the Public Acts of 1941 show what the new, amended matter was and that the purpose of the Legislature was to extend the right of action, which already existed in the State to "any town or city within the State." Fundamentally, the town or city is a part of the State government. Departing from the original theory which inhered in the foundations of our State government, the town or city is now an adjunct of instead of a supporting base for the existence of the State. The town or city, in and of itself, has no authority or right but derives its authority and right to exist, and to function, from the State. The net result of this reasoning is to induce the conclusion that, whereas the State, as the principality, originally had this right of action and has had it for a long period of years, the right, which by virtue of the various statutes then in existence-inhered in the State, is now extended to its subdivisions. This is not the creation of a new right but it is the extension of the right from the greater to the less. The "greater contains the less." The present section (250f) follows the pattern of its predecessors with some exceptions. "The history and progress of laws furnish a legitimate and. most useful clew to their construction." Quinebaug Bank vs. Tarbot, 20 Conn. 509, 518. The present section (2 5 Of) is nearly 60 lines in length. It had its origin in a section less than five lines in length, which was chapter 37 of the Public Acts of 1915, and which reads-as follows: "When any person supported at the expense of the state shall die leaving personal estate not exceeding fifty dollars in value, the .comptroller may sell it for the use of the state, unless some person interested in such estate shall take out administration thereon within ninety days after such death." This section was approved on March 23, 1915, and it should be noted that its side note is entitled "Personal property of state paupers, Authority of comptroller to sell." It is quite evident that, between that session of the Legislature and the 1917 session, the whole subject matter of the commitment and support of paupers and other 'indigents was-given a considerable amount of study, because, in the 1917 session, chapter 335 of the Public Acts was adopted, which, consisted of 12 sections. In section 5 of that chapter the word "support" was construed and ^its purview was considerably extended. In a modified way it then took on its present form. In the sixth line of section 7, it was provided that "such person, or his estate, shall be liable to reimburse the state for the amount expended by the State for his support or benefit, and such amount may be recovered in a civil action in the-name of the state." It was -also there provided that liability should inure in favor of the State and against various named relatives, including the husband, wife and others. In the middle of that section, it was provided that the Statute of Limitations shall apply to any such claim and pro' vision was made for the presentation of the claims to the executor or administrator of the estate within the time limited for the presentation of other claims but provision was also made there that "failure to so present such claim shall not prevent recovery from any other person thereby made liable therefor." The provision as to the personal estate was then prescribed to be "not exceeding one hundred dollars in value." By various amendments to be found in chapter 208 of the Public Acts of 1919, chapter 101 of the Public Acts of 1921, and the construction and interpretation of the statutes as found in chapter 75 of the Public Acts of 1923, chapter 17 of the Public Acts of 1925 and chapter 116 of the Public Acts of 1929, the limitation as to the recovery from personal property and the limitation as to amount were removed so as to be contained within the general statement that the recovery might be had "from such person, or his estate" and this without limitation. However, in chapter 208 of the Public Acts of 1919, this section was amended, in part, to read that: "The statute of limitations shall not apply to any such claim." (Italics added.) This amendment is cited to indicate the existence of the legislative intent to make this section of the statutes broader and more comprehensively inclusive. The present section 1747 of the General Statutes, Revision of 1930, does contain a provision which is a modification and extension of the original provision as to the amount of personal property from which recovery may be had by the State. In the original provision the amount of recovery from per sonal property was limited as to the amount which might be had from the estate or from the person. The net result is that the present section 2 5 Of not only provides that summary action may be taken by the State, town or city as to any funds in the estate up to $500, but it also provides for recovery of the whole value of support furnished to be recovered from the estate of the responsible relative. Reliance is also had in the demurrer upon the provisions of section 1718 of the General Statutes, Revision of 1930, which provides, substantially, that "the estate of any person dying without issue, leaving a husband or wife surviving, shall be liable for the support of such surviving spouse until remarriage if such survivor shall become poor and there shall be no person or persons of sufficient ability.. . .to provide such support." (Italics added.) In the present action no reliance is had for a recovery upon the provisions of section 1718. This action is brought for recovery entirely under the provisions of section 2 5 Of. Section 2 5 Of of the Public Acts of 1941 makes no" exception and requires no allegation that the person who had this support died without issue. The Opening line of this section is as broad as may be stated and reads as follows: "When any person shall have been supported No reference is' made to the qualification that the person, from whose estate recovery is sought, shall have died without issue. Upon the construction of the entire context of section 2 5 Of of the Public Acts of 1941, and its predecessors, the apparent expressed intention of the Legislature was to provide for general recovery from the estate of the deceased person with no limitation as to the extent of the recovery nor of the source nor of the person from which or from whom the recovery may be made. The real purpose of the amendment, as contained in the present section of the statute (2 5 Of) seems to be to include, not only the State, as a beneficiary plaintiff, but its subdivisions, the town or city. The allegations of the present pleading bring the claim and the cause of .action specifically within the terms of section 250f. As to the reliance which is had in this demurrer upon the claim that this statute should not be interpreted to be retroactive or retrospective, it should be observed that, in the defendant's brief on this demurrer it is said that section 2 5 Of "for the first time gave to a town or city within the State the right to bring a suit for reimbursement against the estate of a' deceased wife for its support of her former spouse. Prior to section 2 5 Of this right was given only to the State." That statement is true but the difficulty with that claim is this; that if we assume and accept the principle that "the greater contains the less", then the present amendment gave no new right against the estate, but merely specified that a subdivision of the State, that is, the city or town, may re' cover, directly, instead of vicariously through the State, as it was formerly so provided. Reliance is also had, in this demurrer, upon the provisions of section 6572 of the General Statutes, Revision of 1930, which provides that "no provision of the general statutes", not previously contained in the statutes of the State, which shall impose any new obligation on any person or corporation, shall be construed to have a retrospective effect." For this interpretation the defendant relies upon the case of State vs. Romme, 93 Conn. 571. In that case it was said, by our Supreme Court, that the statute is divisible, but, as pointed out in that case, the divisi' bility was as to persons and not as to time, as appears from the following excerpt (p. 573): "In one part it authorizes recovery from the unfortunate or his estate; in another the right to secure reimbursement is extended so that other persons are made liable to respond." In so far as the retroactive construction is concerned, this was said (p. 575) : "It has been suggested in support of the claim that the statute ought not to be given a retroactive con' struction, that recovery by the State of payments made prior to the passage of the Act would be so unfair and unjust that it must be presumed not to have been within the legislative contemplation. This argument is based upon a premise more superficially plausible than sound. Reimbursement is sought from the unfortunate's estate left at her decease and not other' wise. That estate was primarily chargeable for her care and support and was directly benefited by the State's contribution to that end. The amount remaining in the defendant admin' istrator's hands represents, in part at least, that benefit. What unfairness or injustice there can be in compelling repayment out of it of the State's contribution for the unfortunate's web fare, we are unable to discover. The consequence of such repayment will, of course, be that the estate to be divided among the expectant heirs, who permitted the unfortunate to become a public charge, will be diminished in amount, but the superiority of their position in either law or morals over that of the State is not apparent." For all of the reasons stated the demurrer is overruled.

Memorandum of decision in proceeding involving custody of child. MUNGER, J. The parties have raised interesting questions of law with respect to the judgment which should be rendered. It is said that by virtue of the appointment of the plaintiff as guardian by the probate court in Illinois and because full faith and credit must be given to this decision nothing remains for this court except to recognize this decree and award custody to the plaintiff. The plaintiff says that the domicile of the child is that of the father in Illinois and that the probate court in that state had jurisdiction to pass the decree. The defendant has contended that the domicile of the child is that of the mother who is living here at the present time in Connecticut and that she had a right to acquire a separate domicile. The defendant further has contended that the probate court in Illinois was without jurisdiction to enter its decree appointing the plaintiff guardian of the child because the defendant in that court entered a special appearance only for the purpose of contesting jurisdiction and the court was without power to render any decree in personam. In Torlonia vs. Torlonia, 108 Conn. 292, it was held that the wife might acquire a separate domicile when the circumstances of the case warranted it; that is, if she left her husband for cause she would acquire such domicile. With respect to this claim it can only be said that I could not find a separation from the husband for cause sufficient to give the defendant a right to acquire a domicile in Connecticut apart from that of her husband. So far as the claim is made by the defendant of lack of jurisdiction of the probate court in Illinois to appoint the plaintiff guardian, there is abundant authority that in habeas corpus proceedings the court is exercising equity powers and the nature of the proceeding is in fact one not in personam but one in rem, a proceeding that is to determine the status of the child. People vs. Wilcox, 22 Barb. (N.Y.) 178, 189; Richards vs. Collins, 45 N.J.Eq. 283, 286. In the case last cited the court said (p. 285) : "But the court of chancery exercises a far more extended control in respect to the right of custody of children in virtue of an inherent jurisdiction over that subject. In the exercise of this higher authority, that court may permanently fix the status of infants even in disregard of the legal rights of parents, where the welfare of the infants requires it." I do not, however, rest the decree which is now entered upon the basis of any absolute legal right which has been gained by the plaintiff by virtue of his appointment as guardian of the child by the probate court in Illinois and nothing in the decree of this court now to be rendered is to be taken as overruling any claim made by the plaintiff, on any ground, that he is entitled to custody. I am firmly convinced that both parents have the welfare of this child at heart. I am further firmly convinced that considering the matter from every possible aspect the welfare of the child will be better served by awarding the custody to the father subject to the right of the mother to 'have custody for .a limited period during the year. The economic status of the father would best serve the child's welfare. The mother is :now employed and at the present time earns good wages, but -.they are the product of circumstances highly artificial and it is impossible to say how long this earning capacity may be maintained. I rest this decree upon the authority of Pfeiffer vs. Pfeiffer, 99 Conn. 154. I find that the welfare and best interests of the child require that custody should be and it is hereby awarded to the plaintiff', subject, however, to the right of the defendant 'to have custody from the end of the school year in June during the summer vacation until school resumes again in the fall. It has been signified to the court that the plaintiff, when school resumes in the fall, will come and take the child back to his own domicile in Illinois, and it is the decree of the court that at such time the defendant shall surrender the custody of the child to the plaintiff with whom it shall continue to reside until the beginning of the next school vacation in the summer. A judgment file may be prepared carrying out and specifying the terms of the decree as now rendered.

Memorandum of decision on demurrer. FITZGERALD, J. The first count of plaintiff's complaint alleges, in substance: (1) that on April 16, 1937, defendant purchased a certain car from S, an auto dealer, under a conditional sale contract which provided for assignment of said contract by S at any time and without notice; (2) that said contract was in fact assigned by S to plaintiff on said April 16, 1937; (3) that by the terms of said contract defendant agreed to pay the sum of $534.78 in 18 monthly installments of $29.71; (4) that said contract further provided that if pay' ments thereunder were not timely made, S or its assignee could repossess said car and sell it, crediting defendant with the sum realised on such sale, less cost of necessary repairs in putting said car in condition; (5) that defendant under said contract would be liable to S or its assignee for any balance thereafter remaining due; (6) that on December 1, 1937, plaintiff in fact repossessed said car and after expending money for neces' sary repairs sold it on July 18, 1938, for $350; (7) that on the latter date the balance due under said contract, including the sum of $90.11 for necessary repairs, was $476.23; (8) that after deducting the sale price realised after repossession ($350), the balance due was $126.23, which defendant to date has not paid although requested to do so. The foregoing represents a detailed analysis of the first count of the complaint, which comprises five paragraphs. At the outset the court makes the observation that it would have constituted better pleading if plaintiff had incorporated in the complaint, by reference styled Exhibit "A", a copy of the contract. However, the allegations sufficiently indicate that the conditional sale contract upon which the action is predi' cated is substantially in standard form. By way of illustra tion see footnote to Zazzaro vs. Colonial Acceptance Corp., 117 Conn. 251, 255. Defendant demurs to the first count on six grounds. The grounds of the interposed demurrer, however, are resolved to three main claims: (1) that prior to instituting this action it appears that plaintiff has elected to reclaim, and has reclaimed, possession of the' car, and consequently is not entitled as a matter of law to pursue the alternative remedy of bringing suit to recover on any unpaid obligation growing out of the conditional sale contract; (2) that plaintiff in law is precluded from treating the original transaction as a valid sale on the one hand and an invalid sale on the other, all at the same time; and (3) that the defendant is not responsible for any money expended by plaintiff in repairing the car after the latter repossessed the same on reclamation. It is the general rule that in the absence of a specific clause in a conditional sale contract conferring upon the seller or his assignee the right to recover from the buyer the balance of the purchase price after repossession and resale by the former of the property in question, such right does not exist. See Anno. 37 A.L.R. 91. An examination of such cases as Hine vs. Roberts, 48 Conn. 267; Loomis vs. Bragg, 50 id. 228; Crompton vs. Beach, 62 id. 25; and Connecticut Credit Corp. vs. Marasco, 5 Conn. Sup. 396, makes it apparent that the law of Connecticut in this respect is in accord with the general rule. The Hine and Loomis cases are cited in support of the rule in the annotation, supra, at page 92. In recent years the general rule has been relaxed when it appears that .the conditional sale contract expressly contains a provision permitting repossession of the subject matter of the sale by the seller or his assignee and a resale thereof with right to claim against the buyer under the conditional sale contract the amount of money representing a deficiency. See Anno. 99 A.L.R. 1288, 1290. Research has satisfied the court that the Connecticut rule is now in line with the recent trend in relaxing the general rule, providing: (1) the conditional sale contract contains'an express clause permitting repossession, resale and credit by the seller or his assignee; and (2) that after repossession the seller or his assignee does not retain possession bf the subject matter of the conditional sale contract but in fact resells the same within a reasonable time and credits the proceeds derived from such sale on the contract obligation. See Zazzaro vs. Colonial Acceptance Corp., supra, pp. 256, 257; K. B. Noble Co. vs. Popielarczyk, 125 Conn. 699, 703. It necessarily follows, therefore, that there is nothing objectionable de allegations in the first count of the complaint. Plaintiff, pursuant to an express provision in the conditional sale contract, has previously repossessed the car following default in payments, expended money to put the car in proper condition to effect a resale, has resold the car and credits defendant with proceeds realized therefrom on the outstanding debt due under the provisions of the contract. The office of a demurrer serves the purpose of admitting facts well pleaded. Meriden vs. Rogers, 111 Conn. 115, 118; Hardy vs. Scott, 127 id. 722, 723. The court deems the facts to be well pleaded in the light of the foregoing discussion and analysis. Defendant in argument has relied entirely upon the case of Walcott vs. Fallon, 118 Conn. 220, as authority for sustaining the interposed demurrer. It is sufficient to say that in the Walcott case plaintiff sought to replevy the subject matter of the conditional sale contract after he had commenced, then withdrew, a former action on the notes. Manifestly, the case itself deals with, the converse of the situation in the case at bar, factually speaking, and is distinguishable on this ground if not on other grounds. For reasons stated the interposed demurrer is overruled 'in toto.

Memorandum of decision on demurrer. QUINLAN, J. Counsel argued this demurrer on the assumption a preliminary statement of demurrer was incorporated in the demurrer. The questions presented by this demurrer arise under section 1430e of the 1939 Supplement to the General Statutes. It concerns an action claiming damages in excess of the $15,000 limit provided by statute, and alleging loss of earnings and services of a minor boy. The question has been so frequently and so well discussed as not to require a lengthy memorandum. See Kowalsky vs. Leonard, 4 Conn. Sup. 219 (Inglis, J.); Lucier vs. Hittleman, 125 Conn. 635, 638, and Perlstein vs. Westport Sanitarium Co., 11 Conn. Sup. 117, 119 (O'Sullivan, J.). These cases stem from Kling vs. Torello, 87 Conn. 301. The recurring frequency, of so recent date of the questions involved merits the suggestion contained in Lucier vs. Hittleman, supra, p. 639, that the matter should be referred to the Legislature "as has been done in several of the slates." (Italics added.) The demurrer- is sustained.

Memorandum of decision in action on promissory note. BORDON, J. Prior to June 30, 1941, the plaintiff offered to sell its property known as numbers 399'401 Bellevue Street, Hartford, to the defendant for $2,300, of which amount $200 was to be paid in cash and the balance by a purchase-money mortgage, payable $22.27 a month for ten years. Its real estate committee, its executive committee and its board of directors, all approved the sale on that, and no other, basis. At the closing the defendant was requested to sign the note in suit, which calls for payment on demand, with the right in the defendant to make monthly payments for ten years if no demand is previously made. The defendant objected to the signing of the note because óf his understanding that it was to be payable in monthly in' stalments over a period of ten years rather than on demand. He was then informed by the plaintiff's assistant treasurer that it was its policy to take only demand notes, but that as long as the monthly payments and taxes on the property were kept up no demand would be made. Relying on the good faith and reputation of the plaintiff, the defendant signed the note in suit and thereafter made payments regularly until July, 1942, when the plaintiff refused to accept proffered monthly payments and brought suit for the unpaid balance of the note. It is admitted that, at the time of demand and suit, no default existed. It is the plaintiff's claim that the court should have excluded parol evidence tending to vary the terms of the written instrument forming the basis of this suit. However, it was ruled that in order to determine whether the written document represents the agreement of the parties resulting from their conduct and negotiations, the court should have before it all of the evidence surrounding the transaction. If the court finds that the written document integrated all intended terms and agreements and represented the final undertaking of the parties, it may treat the evidence as immaterial and legally void. The oral evidence is essential to determine whether the parol evidence rule is applicable. 9 Wigmore, Evidence (3rd ed. 1940) §2430; Moran Bros. Co. vs. Pacific Coast Casualty Co., 48 Wash. 592, 94 Pac. 106. Having admitted the evidence, the court must now determine its materiality and binding force. During negotiations between the parties it was definitely agreed that an instalment mortgage was to be given in part payment. All of the plaintiff's votes refer only to such a mortgage. The adjustment sheet prepared by the plaintiff at closing recites a monthly instalment mortgage. The agreement, reaffirmed contemporaneously with the closing, reassured the defendant that the demand feature of the note was not to become effective so long as monthly payments and taxes were maintained. Under such circumstances the strict application of the parol evidence rule would defeat the unequivocal agreement and intention of the parties and give effect to an undertaking which neither party contemplated during negotiations and consummation. Such is not the function or purpose of the rule. Particularly is it so when written documents, such as votes and the adjustment sheet, supplement and confirm the verbal agreements, and explain the provision in the note itself that monthly payments may be made until entirely demanded. All of these elements combine to evidence the real agreement and intention of the parties. It is well settled that evidence of a prior or contemporaneous parol agreement or understanding is frequently received where it is consistent with the writing in question and it is apparent that the instrument was not intended as a complete embodiment of the undertaking. If it was the intention of the parties that only part of the terms should be embraced in the writing, then the instrument is not one which is brought within the protection of the rule, and consequently evidence of the remainder of the agreement, consistent with the part which has been reduced to writing, is in no way a contradiction, variance or alteration of the instrument. Evidence to sup' plement the writing and show the entire agreement will be received even though the evidence may be in reference to a different subject than that contained in the writing. Similarly, in the case of an agreement which is expressed' in two or more writings, evidence will be received to connect them for the purpose of showing the complete and full undertaking. In all cases, however, where such evidence is offered, the court will receive in evidence only such terms as are con' sistent with the writing, and where it satisfactorily appears that the instrument was not intended as a complete expression of the agreement. Tompkins, Chamberlayne Trial Evidence (1936) §848; Webber vs. Smith, 24 Cal. App. 51, 140 Pac. 37; Carter vs. Griffin, 114 Ga. 321, 40 S.E. 290; Washburn-Crosby Milling Co. vs. Brown, 56 Ind. App. 104, 104 N.E. 997; Durkin vs. Cobleigh, 156 Mass. 108, 30 N.E. 474; Newburger vs. American Surety Co., 242 N.Y. 134, 151 N.E. 155; 9 Wigmore, Evidence (3rd ed. 1940) §2425. The parol evidence rule does not prevent the introduction of oral evidence of an agreement separate and apart from, or collateral to, that which has been reduced to writing, even though the written contract was made contemporaneously with the' oral one. However, such oral agreement must not vary or contradict the terms of the written contract. But the two agreements may relate to exactly the same subject matter without contra' dieting each other. As well settled as the parol evidence rule itself is the rule that a subsequent agreement in modification of a written in' strument may be shown by extrinsic evidence, no matter how much it may vary the original instrument. Humble, Evidence (1934) §293. Our Supreme Court has many times sanctioned the recep' tion of parol evidence to vary or modify the terms of a writ' ten document in order to give effect to the intention of the parties. A learned and instructive discussion of the subject is contained in the case of Cohn vs. Dunn, 111 Conn. 342, in which this principle is -reaffirmed. "In the great mass of decisions in which the rule has been discussed the question always has been whether the rule was applicable to the situation presented. When found applicable it has uniformly been enforced. The apparent exceptions to the rule are cases which do not fall within it. A collateral agreement that the writing is not to take effect until the hap' peping of some other event, portions of an entire agreement not contained in the writing when it appears that only a portion of the agreement was intended to be reduced to writing, and an entirely distinct contemporaneous agreement, may all be proved by parol. Burns & Smith Lumber Co. v. Doyle, 71 Conn. 742, 745, 43 Atl. 483; Fernandez vs. Thompson, 104 Conn. 366, 369, 132 Atl. 895; Siller vs. Philip, 107 Conn. 612, 620, 141 Atl. 872. The admission of parol evi' dence in none of these cases contravenes the rule, though it may effect quite a different result than if the evidence were confined to proof of the written instrument. The fundamental question is one of the intent of the parties. Did they intend to make the writing the repository of their final understanding upon the particular matter of agreement as to which evidence is offered dehors the writing? If so, such evidence must be excluded. If, however, it appears that the parties intended to restrict the writing to specific subjects of negotiation, then other subjects may be proven 'even though they be... .different from the writing.'. . .This intent is to be sought in the conduct and language of the parties and the surrounding circumstances." Cohn vs. Dunn, supra, p. 346 (italics added). The facts in this case, the conduct and language of the parties and the surrounding circumstances all clearly evidence an intention to enter into an instalment obligation demandable only upon a default. In the absence of a default there is no cause of action. In his counterclaim the defendant seeks a reformation of the note to coincide with the agreement found by the court, and damages. In view of his admission that he knew he was signing a demand note, the court cannot substitute a new one in its place. It can only protect him against a premature de' mand, and permit a collection only in accordance with the proven agreement so long as he fulfills his part thereof. The issues on the plaintiff's complaint and the defendant's counterclaim are found for the defendant, and judgment may be entered for him to recover his costs. All other claims for relief in the counterclaim are denied.

Memorandum of decision in action arising out of destruction of automobile stalled on railroad crossing. FITZGERALD, J. Plaintiff brings this action against the trustees of the New York, New Haven & Hartford Railroad Company (said company being a railroad corporation and the named defendants—Messrs. Palmer, Loomis and Sawyer—here' inafter referred to collectively as the defendant railroad, having placed on them the responsibility of the management and con' trol of said railroad in proceedings for reorganisation under the' National Bankruptcy Act and amendments thereto) to recover damages for the total destruction of her 1939 Hudson sedan on the early evening of December 24, 1940, and for the destruction of certain items of personal property in said car at the time in question. It appears that on December 24, 1940, plaintiff and her husband left their Newark, New Jersey, home and drove up to Connecticut to spend the Christmas holidays with their friends, a Lussier family, who lived in Groton. The Lussiers occupied as tenants a dwelling house on a strip of land in Groton located to the east of double tracks of the defendant rail' road, which tracks are part of the "Shore Line" division of the railroad extending between Providence to the north and New Haven to the south. The owner of the property thus occupied by the Lussiers derives title thereto through her forbearers, commencing with one F. H. Bradley, her grandsire. The property has been in the Bradley family since 1861, title having been acquired in that year by the said F. H. Bradley from The New Haven, New London 6? Stonington Railroad Company, which corporation the defendant railroad succeeded subsequent thereto and many years before December 24, 1940. The dwelling house thereon, occupied by the Lussier family, was constructed sometime in 1913. The only means of ingress and egress for a motor car to and from this property is by crossing the aforesaid tracks (the easterly pair being used by the defendant railroad for its northbound traffic in the direction of Providence and Boston and the westerly pair for its southbound traffic in the direction of New Haven and New York) at a point1 called "Bradley's Crossing." This crossing is a combination of gravel and wooden planks, and was maintained by the officials of the defendant railroad on December 24, 1940, and for many years prior thereto. On said December 24, 1940, at about 6:30 p.m., or a few minutes thereafter, plaintiff's car (her husband operating and she a passenger therein) proceeded to cross Bradley's Crossing to enter the premises occupied by the Lussiers. The long journey from Newark was almost at an end. But a perverse destiny played an ignoble part. The car became stalled and in its motionless state straddled across the southbound tracks leading to New Haven and other points south. The efforts of plaintiff's husband to get the car started were of no avail. The stalling of plaintiff's car was not due to any physical condition or state of disrepair of the crossing, but rather because of some mechanical defect in its engine. At exactly 6:48 p.m.—several minutes later—"The Merchant's Limited", a fast train out of Boston to New York, via Providence, rammed into the car, totally destroying it as well as wearing apparel, Christmas gifts to the Lussiers, etc., contained therein. The engineer, a seasoned and experienced employee of the defendant railroad, brought the train to a stop 1,482 feet south of Bradley's Crossing. Notwithstanding the strongly pressed claims of the defendant railroad that plaintiff was contributorily negligent because of the fact that the car stalled as it did, and that plaintiff's husband as her agent had a sufficient opportunity to, and could have, rolled the car off of the tracks before the accident, the court finds that there is 'no material Contributory negligence chargeable to plaintiff. The question decisive of the case, therefore, is whether plain' tiff, has established by a fair preponderance of the evidence one or more material allegations of negligence on the part of the- defendant railroad, its servants and agents, and whether such negligence, if negligence there be, was ¿ proximate cause of the accident in question. After the presentation of evidence counsel for the parties fully argued the case both orally and in briefs. In arriving at what it considers to be the correct decision in the case the court has tried to keep in mind the wise comment of Justice Banks in Lomas & Nettleton Co. vs. City of Waterbury, 122 Conn. 228, 234:. "Law suits are not determined by a considera' tion of philosophy in the abstract, but by the application of legal principles to the facts of a particular case." The accident occurred in the early evening, but neverthe' less in the night season. The evidence discloses that the electric headlight on the engine (Goldep Glow type, 32 volt, 250 watt bulb), at the very most, could penetrate and light up the dark' ness ahead (and the tracks on a straight stretch) for a distance of 800 feet at best. The engine itself is a large steam loco' motive, Pacific type, using soft coal for fuel, and weighing 222 tons. The distance between the front of the engine and the engineer's cab is 40 feet. On the evening in question the engine was drawing seven Pullman cars. This train was and. is designated as "The Merchant's Limited", a fast train, leaving Boston at 5 p.m. and arriving at New York at 9:15 p.m. The distance between Boston and New York is 232 miles; between Boston and Providence is 43.8 miles; between Providence and the scene of the accident is 53.7 miles. Also, the train on the evening in question was running substantially according to schedule.- "The Merchant's Limited" is obviously intended to meet the needs of those members of the public who are re' quired to travel in -a limited time between the' great cities of Boston and New York, and intermediate points. Some few thousand feet north of Bradley's Crossing the train on the evening in question slowed down" to 45 m.p.h. at the Mystic Drawbridge. This was a restricted speed estab' lished by the railroad officials at this point. A curve in the tracks is also 'located north of the crossing in question. The tracks are substantially straight, however, for at least 1,045 feet north of said crossing. The engineer testified, in substance, that he first observed what appeared to him to be a commotion at Bradley's Crossing when the front of his engine was between 500 and 600 feet north thereof; that he saw the figure of what appeared to be a person in a white sweater run from the tracks to the west side- thereof. This was plaintiff's husband. The engineer then applied the brakes. At the time the brakes were applied the front of the engine was between 50 and 60 feet north of said crossing and the stalled car. The engineer also testified that the train was commencing to pick up speed after the aforesaid' 45 m.p.h. slowdown, and that at the time he applied the brakes its speed was about 50 m.p.h.; that he stopped the train as soon as he could and that in no event could he have stopped it within 800 feet (the distance lighted up on a straight stretch by the engine's electric headlight), or even within 1,045 feet (the distance between Bradley's Crossing and the crossing north thereof). The engineer's testimony de speed and capacity of engine headlight was substantiated by the fireman, who is also a veteran employee-of the defendant railroad. The court accepts the testimony of these witnesses. Plaintiff offered no contrary evidence de ability of train to come to a complete stop within 800 feet, or within any specific distance for that matter, when traveling at a speed of 50 m.p.h. The court cannot indulge in speculation, surmise and conjecture. It must accept the evidence given at the trial. Consequently, had the engineer in fact seen the car when the engine was 800 feet north thereof, and immediately recognized that the car was stalled and in a helpless state, or if the engineer should have seen 'and recognized the existing condition at Bradley's Crossing, but did not, the fact still remains that the train could not have been brought to a complete stop to have avoided the accident even within 800 feet, or a greater distance. This aspect in itself is decisive of the case, for plaintiff has offered no evidence to warrant the court in finding that the train could have been stopped in time to avoid the accident. The fact that Mrs. Lussier ran up the track to flag the train and then, recognizing the futility of so doing, commenced to return to the car, is of little importance. She wore a dark coat and exactly what the lady did, if anything is not clear on the record. The fact that plaintiff's husband may have turned on and off the headlights of the car for a few minutes before the accident, as a signal of distress and warning, does not effect the decision of the case. As noted previously, the train came around a bend north of the scene of the accident, and the flashing on and off of auto lights which pointed easterly is of doubtful, if not negative, significance. Plaintiff's claims, in the main, are that in crossing Bradley's Crossing her status was that of an invitee; that the defendant railrqad was under the duty to anticipate at. a crossing of this character that a car might become stalled, as her car did; that the private crossing was unprotected; that the train was travel' ing at a high and dangerous rate of speed, without regard to surrounding circumstances and location; that the engineer and fireman did not have the train under proper control and did not 'maintain a proper lookout and failed tp observe the peril of her car, etc. For the court to answer specifically all of the aforesaid claims would result in some repetition of what has already been stated as well as involve stating other subordinate facts thus prolonging a diemorandum that is already of considerable, if not excessive, length. It is deemed sufficient to say that the status of plaintiff was probably that of a licensee and not of an invitee, but even if she were an invitee the outcome of the case would be no different. Bradley's Crossing is located at a point on the tracks where great numbers of people are not apt to cross, and did not cross in December, 1940. The crossing was a private crossing. Also, the' fact that the fire' man was. attending to the engine's water system just before the accident and was hot perched in his cab gazing forward, could not have altered matters in view of what has previously been said. In short, to place the burden upon the defendant railroad required by plaintiff's claims, in the light of the evidence in the case, would result in a national calamity, for railroad sys' terns perform a vital function in the life of the nation. For the defendant railroad, its servants and agents, to have antici' pated the presence of plaintiff's stalled car at a crossing such as Bradley's Crossing would, to say the least, approach the fantastic. The sympathy that the court feels for the plaintiff cannot be permitted to effect rules of logic and principles of law. Plaintiff has suffered damages but no legal liability is found to exist on the part of the defendant railroad. The discussion of our Supreme Court in the following cases has been helpful in analyzing the limits of the controlling question: Dyson vs. New York & New England R.R. Co., 57 Conn. 9; Andrews vs. New York & New England R.R. Co., 60 id. 293; Pomponio vs. New York, New Haven & Hartford R.R. Co., 66 id. 528; Freedman vs. New York, New Haven & Hartford R.R. Co., 81 id. 601; Elliott vs. New York, New Haven & Hartford R.R. Co., 84 id. 444; Tefft vs. New York, New Haven & Hartford R.R. Co., 116 id. 127; and Pratt, Read & Co. vs. New York, New Haven & Hartford R.R. Co., 102 id. 735. See, also, Markar vs. New York, New Haven & Hartford R.R. Co., 77 F. (2d) 282, and particularly, 3 Blashfield, Cyclopedia of Automobile Law and Practice (perm. ed. [1935] §1702), and cases contained in footnotes. The controlling issues are found for the defendant railroad. Judgment will enter accordingly.

Memorandum of decision in action against schoolmaster for injuries to pupil. O'SULLIVAN, J. Speaking broadly, it may be said that there are but few matters in dispute concerning the events which occurred one morning in April, 1941, at the Sarah Reynolds Grammar School in Forestville. Shortly before the morning session opened, some of the children were engaged in playing with a baseball on the playground. Among them was the plaintiff. He was not a rugged boy. His age was ten; his weight, 89 pounds; and his height was below that of the average boy of similar age. The ball had been taken from a little girl who, quite typical' ly, ran to her teacher to complain. She returned to the yard with a Mrs. Taylor, who taught third grade and in whose room the plaintiff was a pupil. Just as she appeared on the scene, the ball was .in the process of disappearing over or under a fence along the rear boundary line of the school property. Mrs. Taylor told the plaintiff to go after it but he replied that he had not thrown it and unless she ordered the boy who was responsible to accompany him, he wouldn't get it. .Further words ensued between Mrs. Taylor and the plaintiff, and in the meantime the ball was retrieved by another young' ster. Shortly afterwards, the plaintiff entered the school building and went to his room. Mrs. Taylor then informed him, in the presence of the other scholars, that he was to be punished,' not because the ball had been taken from the little girl, but because of his insolence. Though attempting to carry out her threat, she was unable to do more than hit him on the neck with a leather strap, in as much as the plaintiff kept backing away from her. About this time, the defendant, who was the principal of the school, came into the building and in passing the door leading to the third grade he observed what was going on arid entered the room. Upon being told by Mrs. Taylor what had occurred, he requested the plaintiff, who was obviously in a rage, to go upstairs to the office. As the plaintiff refused to move, the defendant grasped his left wrist and in spite of constant efforts to free himself, the boy was pulled across the floor.to the door and then out.into the corridor from which .a flight of stairs led to the floor above. The boy continued •to struggle and made an attempt to kick the defendant and, either at this time or somewhat later, succeeded in scratching him with his free hand. By now, the boy was crying and he began to call the defendant vile epithets. Finally, the latter grasped both wrists and pushed the boy to the floor. The struggling still continued and he again tried to kick the principal. - The defendant then knelt on the boy's midriff with one knee, while he kept both wrists in a tight grasp. Attending the same school were a slightly older brother of the plaintiff, named Clayton, and a still older sister in eighth grade. Quite by accident, Clayton entered the corridor about this time and seeing the principal kneeling on his brother stopped but was told to go to his room. Instead of doing that, Clayton went upstairs for his sister and shortly thereafter returned with her. By this time, the principal had shifted his position and was sitting on the boy, but arose when Clayton and his sister arrived. He then told them to take the plaintiff home. During that period when the defendant was kneeling and sitting on the plaintiff and as a result of the latter's effort to free himself from the crushing weight on him, the boy, in the course of his squirming, sustained a slight abrasion under his right scapula, causing a break in the skin and an almost insignificant amount of bleeding. Of this injury, the plaintiff was totally unaware at the time it occurred. The sister proceeded to take her brother home but on the way had to help him. He had difficulty in walking and felt pain in his lower back. When they reached home, he cried and complained of more pain and lay on a sofa until his mother, who had been at work, returned in the early afternoon, a matter of probably six hours after the occurrence of the above-related events. She removed her son's clothing, the upper part of which consisted of a light jersey, shirt and undershirt. On this last mentioned garment was a blood stain about the size of a thumb nail and in such a position as to indicate it had been directly over the abrasion under the right scapula. Mrs. Calway washed the wound which was, at the time, exuding a small amount of fluid. It is needless, I think, to describe in detail the unusual and tragic sequence of events that then followed. Suffice it to say that at the situs of the abrasion an infection set in, the area became inflamed, staphylococcic septicaemia ensued, followed in turn by osteomyelitis of the lumbar spine and the crippling and long hospitalization of the boy. At one time, his life was despaired of. He is at present capable of moving about but is encased in a plaster cast from his armpits to his buttocks. I am thoroughly satisfied that there was an unbroken chain between the osteomyelitis and the abrasion, through which, as a portal, the organisms that led up to the final diseased condition entered into the blood stream. Hence, there exists that natural and direct connection between the osteomyelitis and the events that occurred in the corridor of the Sarah Reynolds School. Thus, the real problem is whether the defendant should be held responsible, because of unlawful conduct, in causing the abrasion. All of the many cases I have examined involve illustrations of child punishment. The instant case is not quite of that character. It has arisen out of a set of facts, occurring, not during the process of punishing -a pupil, but while a principal was engaged in curbing a child in an obstinate demonstration of childish rage. In other words, the abrasion under the scapula was not the result of corporal punishment as a welt would be, following a blow from a strap. It was a totally unintended incident, happening while the principal was engaged in restraining the plaintiff in an outburst of temper. Yet the rule of reasonableness and moderation that is universally applied to the schoolmaster's right to resort to the corporal punishment of his pupils in proper cases, should, it seems to me, have equal application where the child is being subdued rather than punished. Peck vs. Smith, 41 Conn. 442; Sheehan vs. Sturges, 53 id. 481. This standard of reasonableness, required of a schoolmaster attempting to repress an unruly pupil, must always be viewed in the light of the circumstances of each case. For example, among others, matters to be considered by the trier are the age, health, and sise of the offending child, the gravity of his unruliness, ur if he be in a rage, then its vehemence and impetuousness, the effect on discipline, the probable injury to 'person or property, and the need for prompt action by the teacher to cope with a suddenly created situation. Considerable allowance—indeed, to a much greater degree than where punishment is the objective—should be extended to the schoolmaster's judgment, especially where he is suddenly faced with the problem of an ungovernable boy and has not had the benefit of deliberation as to the proper method of overpowering him. And yet, after all of the circumstances are weighed even in a somewhat sympathetic attitude towards the defendant, I can reach no other conclusion than that he went far beyond the limit of reasonableness and moderation. He was a man of 46, mature, and trained for many years in administrative educational work in primary schools. He was a large man, weighing almost 200 pounds, and from his appearance in the courtroom it was evident that he was strong and powerful. He was dealing with a mere stripling, a boy of ten, whose appearance revealed him as one, if not of a puny, then surely not of a rugged constitution. It is true that most reprehensible was the conduct of the boy, especially in uttering language which belongs to the gutter, but this much may be said, not to justify but to explain his rage, if not his filthy language. In his childish way—and he was but a child—he rebelled at what he deemed had been a real injustice done him when Mrs. Taylor indirectly accused him of having thrown the baseball on private property. Of course, the incident of the ball was insignificant but a ten-year-old mind cannot ordinarily gauge metaphysical values. Harboring, then, a not unnatural resentment because of an injustice which in his immaturity loomed large, his rage mounted when he learned that, in addition to this, he was to be punished, and in his fit of anger, among other things, he expressed himself in abominable language. Of course, he should have been punished, for he deserved it. But to kneel, and then to sit on him is quite another matter. With his 200 pounds of weight, the defendant held that boy under him for a considerable period of time. How long it was cannot be determined with precision, but it was altogether too long, even if it was capable of justification. Certainly it lasted sufficient time to allow Clayton to reach the scene, to pause and have a word or two with the principal, then to climb a flight of stairs to the second floor, go to the eighth grade, ask for his sister and return with her to the first floor to find the plaintiff still pinned to the floor. What the defendant did gives the impression that he had lost all sense of proportion or that he too was in a rage. But whatever'the reason may have been, his conduct was grossly unreasonable and immoderate and therefore, unlawful. The abrasion was not the result of a direct blow by the defendant to the injured area. It occurred from a burning of the skin while boy squirmed about to free himself from an unlawful act of the other. To deny," however, that the principal's conduct was the legal cause of the abrasion would be comparable to one's disclaiming liability for injuries sustained by another who to escape an unlawful menacing, falls' down a flight of stairs. The causal connection between the actions of the defendant in kneeling and sitting on the plaintiff and the abrasion is legally unbroken, even though the direct cause arose from the boy's effort to escape from the oppressive 'weight on him. A child's duty, while a pupil, is to submit to the reasonable discipline of the school' authorities, and if injury results to him while rebelling against it, he should assume the consequences and bear his injuries without legal relief. But no child of the tender age and physical condition of this plaintiff is required to submit with the air of a Saint Cecilia while he is being crushed beneath the weight of a 200 pound schoolmaster. The immediate effects of the defendant's unlawful actions were minor. The ultimate and proximate effects, unhappily, were great. Unfortunate as it may be for the defendant, he is liable for all those elements of damage which naturally flow from his unlawful conduct. Thoughtful consideration of these elements convinces me that reasonable compensation should be fixed at $9,140.57, the special damages amounting, as they do, to $140.57. Let judgment enter for $9,140.57.

Heiman, J. The plaintiffs in this zoning dispute appeal from the trial court's judgment dismissing their appeal from the Monroe planning and zoning commission's decision granting the defendant McDonalds Corporation's application for a change of zone and for a special exception permit. They claim that the trial court improperly found that (1) the appeal was moot, (2) the zone change did not constitute spot zoning, (3) the commission did not impose an illegal condition on its decision granting the application, (4) the application was not fatally defective even though the named applicant, McDonalds Corporation, was not an owner of the property at the time the application was filed, (5) the commission's failure to hold separate votes on the requests for a zone change and for a special exception permit was not improper, (6) the building conditions and parking requirements imposed by the commission were not improper and (7) the commission's decision to grant the application was not improper, even though the commission held a public hearing on the application before it received the decision and report of the Monroe inland wetlands commission on a related application. We affirm the trial court's judgment. The following facts are necessary to resolve this appeal. On May 3,1990, McDonalds Corporation filed an application with the Monroe planning and zoning commission requesting a zone change for a four acre parcel and a special exception permit authorizing the construction of a McDonalds restaurant with a drive-through service window. On the date that the application was filed, the subject parcel, located at 390 and 400 Monroe Turnpike in Monroe, straddled two zoning districts: Design Business 1 (DB1) and Residential and Farming C (RC). The Monroe zoning regulations (regulations) permit certain restaurants that do not have drive-through windows to be built in DB1 districts. No restaurants are permitted in RC districts. Restaurants containing drive-through service windows are, however, permitted in Design Business 2 (DB2) districts. The regulations applicable to DB districts provide further: "Any new building to be constructed . . . shall be required to obtain a special exception per mit for business use prior to its use." Thus, in order to build a restaurant with a drive-through window, McDonalds sought a zone change redistricting the entire parcel as DB2 together with a request for a special exception permit. The commission held a public hearing on the application on May 24, 1990. On June 29, 1990, the Monroe inland wetlands commission granted conditional wetlands approval for the parcel. After a single vote taken on July 5, 1990, the planning and zoning commission granted the application. The plaintiff abutting landowners appealed the commission's decision to the Superior Court; see General Statutes § 8-9; and the trial court dismissed the appeal, finding that the appeal was moot and, further, that each of the plaintiffs' claims was meritless. The plaintiffs petitioned this court for certification, which we granted on October 16, 1991. This appeal followed. I Plaintiffs claim that the trial court incorrectly determined that their appeal was moot. At oral argument before this court, the defendants agreed. Although the parties agree that the trial court improvidently dismissed the appeal as moot, we nonetheless must address the mootness issue because mootness implicates our jurisdiction. See Furstein v. Hill, 218 Conn. 610, 627, 590 A.2d 939 (1991). We agree with the parties. The appeal was not, and is not, moot. The trial court found that the commission's adoption of a new zoning map in June, 1991, rendered moot the plaintiffs' challenge to the commission's July 5, 1990 vote granting McDonalds' requests for a change of zone and a special exception permit. Our Supreme Court's recent decision in Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 600 A.2d 757 (1991), which was published after the trial court rendered its judgment, controls our resolution of this issue. In Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, the court recognized that General Statutes § 8-2h (a), which became effective on October 1,1989, legislatively overruled McCallum v. Inland Wetlands Commission, 196 Conn. 218, 492 A.2d 508 (1985), and Johnson v. Zoning Board of Appeals, 2 Conn. App. 24, 475 A.2d 339, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984), cert. denied, 471 U.S. 1066, 105 S. Ct. 2141, 85 L. Ed. 2d 498 (1985), which had determined that certain zoning appeals became moot by virtue of subsequent regulatory amendments. Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 540-41. The current rule in this state is that the validity of a planning and zoning commission's action is to be determined by reference to the zoning laws and regulations in effect at the time that the challenged action was taken. Id.; see General Statutes § 8-2h (a). Thus, a challenge to commission action no longer is rendered moot by a subsequent change in the applicable zoning laws or regulations. Id. The trial court incorrectly concluded otherwise. II The plaintiffs next argue that the commission engaged in illegal spot zoning when it granted the change of zone. We disagree. Our courts consistently have invalidated zoning decisions that have constituted spot zoning. " '[S]pot zoning is the "reclassification of a small area of land in such a manner as to disturb the tenor of the surrounding neighborhood." ' Morningside Assn. v. Planning & Zoning Board, [162 Conn. 154, 161, 292 A.2d 893 (1972)]. Two elements must be satisfied before spot zoning can be said to exist. First, the zone change must concern a small area of land. Second, the change must be out of harmony with the comprehensive plan for zoning adopted to serve the needs of the community as a whole. Id. The comprehensive plan is to be found in the scheme of the zoning regulations themselves. First Hartford Realty Corporation v. Plan & Zoning Commission, 165 Conn. 533, 542, 338 A.2d 490 (1973)." Blaker v. Planning & Zoning Commission, 212 Conn. 471, 483, 562 A.2d 1093 (1989). Our review of the minutes of the commission's July 5, 1990 meeting discloses that the vote to approve McDonalds' application for a zone change and a special exception permit was based in part on the following finding: "[T]he rezoning does not constitute a 'spot zone' as the Plan of Development specifies that the subject area be a business zone without limitation or specification as to the specific zone designation. The subject site is principally zoned business as well as adjoining sites for substantial distances and areas to the north, south and west. The rezoning represents no dramatic change in the already intended use of the site." The commission further announced: "[A]ll aspects and features of the proposal . . . are necessary for the wel fare and convenience of the townspeople and will provide for the growth of appropriate business and retail establishments in town. The use will fill a significant need in the community and will be a desirable addition to the town of Monroe both in terms of goods and services to the community and as a reasonable addition to the tax structure." The plaintiffs rely heavily on the fact that, under the Monroe zoning regulations, a drive-through window is permitted in a DB2 district but is not permitted in a DB1 district. This, they contend, leads ineluctably to the conclusion that the zone change from DB1 to DB2 is repugnant to the town's comprehensive zoning plan. We, however, afford the commission's determination of whether a change comports with the town's comprehensive zoning plan substantial deference. Dooley v. Town Planning & Zoning Commission, 154 Conn. 470, 478, 226 A.2d 509 (1967). Here, the commission rezoned the subject parcel from one variety of design business district to another. The practical effect of the change in zone was simply to permit a McDonalds restaurant with a drive-through window in lieu of a McDonalds restaurant without a drive-through window. The commission did not engage in spot zoning when it granted McDonalds' application for a change of zone because it reasonably concluded that this incremental change in the permitted use of the property was not repugnant to Monroe's comprehensive zoning plan. This claim is without merit. Ill The plaintiffs next claim that the commission improperly required that a sidewalk be installed along one border of the subject parcel as a condition to the change of zone. We disagree. The minutes of the commission's July 5,1990 meeting disclose that the commission approved McDonalds' application subject to a number of conditions, including the construction of a sidewalk along the roadway adjacent to the subject parcel. The plaintiffs claim that this condition violated General Statutes § 8-2, which requires that zoning regulations be uniform throughout all districts in the same class. They contend that because the Monroe zoning regulations do not provide for the installation of sidewalks in DB2 zones generally, the condition was unique to the DB2 zone at issue in this case. As such, the plaintiffs posit, the condition violates the uniformity requirement of § 8-2. Our review of the record indicates that the installation of the sidewalk was a condition that the commission imposed on its granting of the special exception permit, not its granting of the zone change. McDonalds submitted a single uniform land use application to the commission seeking a "Design District Zone Change/ Special Exception Permit." Section 8-2 explicitly provides that zoning commissions may, despite the uniformity requirement, provide that certain classes or kinds of structures may be built only after special exception permits are issued. It further provides that commissions may issue special exception permits "subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values." (Emphasis added.) Section 117-1100 (A) of the Monroe zoning regulations provides in pertinent part that "[a] DB District shall be established and/or a DB use shall be permitted only in an area where the uses meet the conditions for a special exception permit, as provided in Sections 117-1801 and 117-1802 of these regulations." Section 117-1801 (A) of the regulations provides in pertinent part that "[t]he Town Planning & Zoning Commission may approve a special exception permit, which may be subject to appropriate conditions and safeguards specified in its action of approval, to permit the establishment of the uses specified elsewhere in these regulations as being permitted by special exception . . . ." The commission acted well within its considerable discretion in determining that the construction of a sidewalk was "appropriate"; see Monroe zoning regulations § 117-1801; and "necessary to protect the public health, safety, convenience and property values." See General Statutes § 8-2. The plaintiffs argue that only a single vote was taken on McDonalds' application for a zone change/special exception permit, and, thus, the condition necessarily applied to the granting of the change of zone. It is the appellants' burden, however, to present us with a record that is adequate to review their claim. Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407, 480 A.2d 552 (1984). Just as we will not presume that a trial court acted illegally; see Rosenblit v. Danaher, 206 Conn. 125, 134, 537 A.2d 145 (1988); Barra v. Ridgefield Card & Gift Gallery, Ltd., supra; Daly v. DelPonte, 27 Conn. App. 495, 507, 608 A.2d 93 (1992); we will not presume, when faced with this ambiguous record, that the commission improperly imposed the condition incident to its granting of the zone change. See Cahill v. Board of Education, 198 Conn. 229, 242, 502 A.2d 410 (1985); Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 124, 612 A.2d 82 (1992). Because the commission could properly have imposed this condition incident to its granting of the special exception permit, and there is no indication that it instead improperly imposed the condition on its granting of the zone change, its decision must stand. IV The plaintiffs next claim that McDonalds Corporation was an improper applicant because it lacked a sufficient interest in the subject property. We disagree. Section 117-900 of the Monroe zoning regulations provides in pertinent part that "[t]he owner or owners of a tract of land may petition for the establishment of a design district (D) only, coincidentally with an application for special exception permit . . . ." Section 117-900 (A) provides that "[i]n Design Districts, the existing use of land shall not be changed . . . until a site plan of development shall have been prepared by the owner of such land . . . ." McDonalds'application lists McDonalds Corporation as the applicant. The plaintiffs argue that because McDonalds Corporation was a lessee, not an owner, of the property at the time that the application was filed, the application was defective. The application also is signed, however, by George W. Ganim and Laurese Coury, owners of the subject parcel. The signatures of Ganim and Coury appear on the application immediately after the following: "The undersigned, being all of the owners of the premises referred above, hereby consent to the filing of this application together with meeting of all requirements of the applicant by the Commission for same." The commission enjoys reasonable discretion in construing the regulations that it is charged with enforcing. Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991); Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). The plaintiffs bear the burden of proving that the commission acted unreasonably, arbitrarily or illegally. See Spero v. Zoning Board of Appeals, supra, 441. We cannot say that the commission's interpretation of its regulations was unreasonable, arbitrary or illegal. The regulations provide that the owner may "petition" for a change of zone and a special exception permit. Monroe zoning regulations § 117-900. Webster's Ninth New Collegiate Dictionary defines "petition" as "to ask for; solicit." In light of the fact that the owners signed the application, explicitly consenting to it, the commis sion reasonably concluded that they, as well as McDonalds, petitioned for the zone change and special exception permit. See DiBonaventura v. Zoning Board of Appeals, 24 Conn. App. 369, 376, 588 A.2d 244, cert. denied, 219 Conn. 903, 593 A.2d 129 (1991). Similarly, the commission reasonably concluded that the § 117-900 (A) directive that "[i]n Design Districts, the existing use of land shall not be changed . until a site plan of development shall have been prepared by the owner of such land" was satisfied. Section 117-900 (E) provides that "[w]here deemed appropriate in the judgment of the Commission . . . a site plan of development in substantial compliance with the requirements herein may be approved with such minor variations from the strict application of the provisions of these regulations as will provide for the most appropriate use of the land and as will protect the public health and safety and preserve property values and as will provide for the most orderly development of the land. No variations shall be permitted that violate the integrity of these regulations . . . ." The commission acted well within its discretion in concluding that there had been substantial compliance with the site plan of development, despite the fact that the application was prepared by McDonalds Corporation rather than by the owners of the property. The plaintiffs claim further that McDonalds Corporation, a mere lessee of the parcel, lacked standing to apply for the zone change and special exception permit. The principles governing nonowner standing in zoning cases are set forth in Richards v. Planning & Zoning Commission, 170 Conn. 318, 365 A.2d 1130 (1976). The critical inquiry is whether the applicant is "a real party in interest with respect to the subject property. Whether the applicant is in control of the property, whether he is in possession or has a present or future right to possession, whether the use applied for is consistent with the applicant's interest in the property, and the extent of the interest of other persons in the same property, are all relevant considerations in making that determination." Id., 323-24. Our courts, in accordance with the general rule, recognize the rights of certain lessees to apply for zone changes and special permits. Id., 322. The trial court found that McDonalds Corporation had standing because it had a substantial interest in the subject parcel. We agree. In its uniform land use application, McDonalds stated that its purpose in seeking the zone change and special exception permit was to accommodate a drive-through window at its restaurant. Further, the transcript of the proceedings in the Superior Court indicate that the trial court determined, after reviewing the lease, that McDonalds was in fact a lessee of the property. These facts are sufficient to establish that McDonalds Corporation was a real party in interest with respect to the property. Finally, the plaintiffs challenge McDonalds Corporation's standing to seek a zone change and special exception permit on the ground that McDonalds Corporation was a lessee of only one acre of the four acre parcel at issue. We agree that McDonalds was not a real party in interest with regard to the three acres that it did not lease. As we noted earlier, however, the owners of the parcel signed the uniform land use application, explicitly consenting to its being filed. Thus, the application to rezone the entire four acre parcel was properly before the commission, and the application was not fatally defective. V The plaintiffs next claim that the commission improperly held but a single vote on the requests for a change of zone and special exception permit. We disagree. Our review of the record discloses that the commission held separate votes on McDonalds Corporation's requests for a zone change and special exception permit. The minutes of the commission's July 5, 1990 meeting indicate that a motion to deny the application for a change of zone failed, two votes to three. We view this vote as the functional equivalent of a vote to approve the application for a change of zone. Indeed, General Statutes § 8-3 (c) provides that where a commission is faced with a petition seeking a change of zone, "[t]he commission shall adopt or deny the changes requested in such petition." Thus, the commission had only two choices with regard to the request for a change of zone: approve the request or deny it. The commission's vote failing to deny the request constituted an approval thereof. After the vote rejecting the motion to deny the change of zone, the commission voted to approve "the application for zone change and special exception permit . . . ." Because the change of zone already had been approved, however, the practical effect of this vote was to grant only the application for a special exception permit. Because the commission held separate votes on the application for a special exception permit and application for a change of zone, the plaintiffs cannot prevail on this claim. VI The plaintiffs next claim that the commission illegally imposed the following condition on its approval of the application for a special exception permit: "Construction shall commence no later than one year from the date of decision: July 5, 1991." We disagree. The plaintiffs argue that the condition is void because it conflicts with § 117-900 (C) of the Monroe zoning regulations, which provides that an approved site plan "shall become null and void unless construction of building is in progress and not less than fifty percent (50%) of building foundations shown on the approved site plan of development are completed within one (1) year of the date of approval of such plan, unless an extension of time is granted by the Commission." They claim that the condition requiring that construction begin within one year is void because it is less restrictive than § 117-900 (C), which requires not only that construction begin within one year, but that 50 percent of the building's foundation be completed within one year. The plaintiffs correctly assert that the commission cannot attach a condition that conflicts with the applicable zoning regulations to its approval of a special exception permit. " '[T]he conditions under which a special [permit] is allowed must be found in the regulations and cannot be altered; and if a condition is imposed by a commission without being warranted by the regulations, it is void.' [Beckish v. Planning & Zoning Commission, 162 Conn. 11, 15, 291 A.2d 208 (1971).]" Hochberg v. Zoning Commission, 24 Conn. App. 526, 529, 589 A.2d 889 (1991). The condition attacked by the plaintiffs does not, however, conflict with § 117-900 (C) of the Monroe zoning regulations. Section 117-900 (C) expressly provides that the commission may extend the time period within which 50 percent of the building's foundation must be completed. The condition that construction of the building need commence only within one year merely extended the deadline for completing the foundation. As such, the condition did not conflict with the applicable zoning regulations. YII The plaintiffs next contend that the parking proposal approved by the commission is void because it conflicts with the applicable zoning regulations. We are not persuaded. The proposal approved by the commission included forty-four parking spaces. The plaintiffs argue that forty-four parking spaces are inadequate in light of § 117-2402 (G) of the Monroe zoning regulations, which requires one parking space for each twenty-five square feet of patron floor area in a fast food establishment. The plaintiffs, referring to the floor plan prepared by McDonalds, estimate that the patron floor area covers 1725 square feet. Thus, they conclude, a minimum of seventy parking spaces are required by the applicable zoning regulations. The defendants point out that § 117-2403 of the regulations provides: "Where separate parts of a building or structure are used for purposes requiring different amounts of parking space, the number of spaces shall be determined by adding the number of spaces required for the area devoted to each type of use." They contend that the floor plan sets forth two distinct areas of the building, dining and service, which are separated by a sloped wall and knee wall. The defendants argue that § 117-2402 (F), which requires one parking space for each fifty square feet of patron floor area in a restaurant, should be applied to the area designated dining, while § 117-2402 (G), which requires one parking space for each twenty-five feet, should be applied to the area designated service. Applying the plaintiffs' square footage calculations 1218.75 square feet of dining area and 516.38 square feet of customer service area, the defendants conclude that the regulations require twenty-four parking spaces for the dining area and twenty parking spaces for the customer service area — a total of forty-four parking spaces. The plaintiffs reply that even if the defendants' approach is followed, forty-six parking spaces are required. The trial court's memorandum of decision indicates that it agreed with the defendants that the service area is separate from the dining area and, therefore, that the parking space requirements should be calculated at a rate of one space per twenty-five square feet of service area and one space per fifty square feet of dining area. Our review of the floor plan indicates that the trial court correctly determined that the commission did not act arbitrarily, improperly or in abuse of its discretion when it found that the proposed building contained a service area that was separate from the dining area. Further, the trial court properly found that the commission did not act arbitrarily, improperly or in abuse of its discretion when it found that the Monroe zoning regulations required that the premises include forty-four parking spaces. The parties agree that the portion of the floor plan labeled dining contains 1218.75 square feet, while the portion of the floor plan labeled customer service contains 516.38 square feet. Whether these figures require forty-four parking spaces, as the defendants claim, or forty-six parking spaces, as the plaintiffs claim, depends on the methodology used to calculate the requisite number of parking spaces. The dining area requires one parking space per fifty square feet. Monroe zoning regulations § 117-2402 (F). Thus, the first 1200 square feet of dining area require twenty-four parking spaces. If, and only if, the remaining eighteen feet of dining space require an additional parking space, the dining area requires a total of twenty five parking spaces. Similarly, the service area requires one parking space per twenty-five square feet. Monroe zoning regulations § 117-2402 (G). Thus, the first 500 feet of service area requires twenty parking spaces. If, and only if, the remaining sixteen square feet of service require another parking space, the service area requires a total of twenty-one parking spaces. As a result, whether the entire building requires forty-four or forty-six parking spaces depends on whether each fraction of the applicable square footage requirement triggers an additional mandatory parking space. The commission and the trial court apparently concluded that an additional parking was required for only each full square footage increment. Our review of the regulations indicates that these conclusions were not unreasonable. Section 117-2402 (F), which applies to the dining area, mandates "[o]ne (1) space for each fifty (50) square feet of patron floor area . . . ." Section 117-2402 (G), which applies to the service area, requires "one (1) space for each twenty-five (25) square feet of patron floor area." Conspicuously absent from these regulations is language requiring an additional parking space for each portion of fifty or twenty-five square feet, respectively. The trial court properly determined that the commission's requirement that McDonalds' premises include forty-four parking spaces was not arbitrary, capricious or an abuse of discretion. Thus, the plaintiffs cannot prevail on this claim. VIII The plaintiffs finally maintain that the commission's hearing was a nullity because it was held before the Monroe inland wetlands commission had issued a wetlands permit for the project. We disagree. The plaintiffs claim that because the inland wetlands commission did not approve the wetlands application until after the application for a zone change and special exception permit was heard by the Monroe planning and zoning commission, the application was incomplete at the time of the planning and zoning commission's hearing. Thus, the plaintiffs contend, the planning and zoning commission's hearing on the appli cation was a nullity. In support of their claim, the plaintiffs rely on § 117-905 (A) and 117-908 of the Monroe zoning regulations. Section 117-905 (A) provides: "An application for a change of zoning classification to a design district shall be submitted in complete form . . . ." Section 117-908 provides: "[Inland wetlands] approvals and/or permits must be submitted as part of the zone change and/or special exception permit application. No application shall be deemed to be complete until the aforesaid information is submitted to the Commission by the applicant." These regulations, they contend, prohibit the planning and zoning commission from holding a hearing on an application for a change of zone and special exception permit until it receives the necessary approvals from the inland wetlands commission. These regulations merely state that the application for a zone change and special exception permit were not complete until the inland wetlands permit was received. The regulations did not prohibit the planning and zoning commission from holding a hearing on an incomplete application. Section 117-900 (B) of the regulations provides that "[a] public hearing shall be held in accordance with the General Statutes." General Statutes § 8-3 (g) merely directs that the inland wetlands application be filed not later than the day the site plan application is filed with the planning and zoning commission and that the planning and zoning commission not render a decision on the site plan application until the inland wetlands commission has submitted its report and final decision. The planning and zoning commission's decision to hold a hearing on the application for a zone change and special exception permit violated neither the Monroe zoning regulations nor our General Statutes. The plaintiff claims further that the commission's consideration of the report of the inland wetlands commission without a public hearing thereon was improper because it deprived them of an opportunity to be heard, and, if appropriate, to offer evidence in rebuttal. We disagree. General Statutes § 8-3 (g) required the planning and zoning commission, in making its decision on the application, to give due consideration to the report of the inland wetlands commission. A commission may not, however, consider evidence submitted after a hearing without providing the opposition with a fair opportunity to inspect the evidence and to offer evidence in explanation or rebuttal. Blaker v. Planning & Zoning Commission, supra, 477-78; Wasicki v. Zoning Board, 163 Conn. 166, 172-73, 302 A.2d 276 (1972); Carlson v. Fisher, 18 Conn. App. 488, 503, 558 A.2d 1029 (1989). Here, the inland wetlands commission held a public hearing on the plaintiffs' application to it. The public hearing before the inland wetlands commission was sufficient to safeguard the plaintiffs' right to be heard regarding the matters addressed by the inland wetlands commission in its report. The plaintiffs cannot prevail on this claim. The judgment is affirmed. In this opinion the other judges concurred. The plaintiffs are John Michel, Jr., Helen M. Michel, Sr., Helen M. Michel and Michel Realty Limited. The defendants are the Monroe planning and zoning commission, McDonalds Corporation, George W. Ganim, Laurese Coury and Josephine Ganim. The plaintiffs have filed a joint brief with this court. The defendants Monroe planning and zoning commission, George W. Ganim, Laurese Coury and Josephine Ganim also have filed a joint brief. McDonalds Corporation, although a party to this appeal, has neither filed any papers with nor participated in oral argument before this court. Thus, whenever this opinion refers to an appellate position attributed to "the defendants," that argument should be understood as having been advanced in this court only by the Monroe planning and zoning commission, George W. Ganim, Laurese Coury and Josephine Ganim. Although our Supreme Court's decision in Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 600 A.2d 757 (1991), was not announced until after the trial court decided the plaintiffs' appeal, we are not presented with an issue regarding the retroactivity of the court's holding in that case. As we noted above, it was not our Supreme Court's decision in Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, but the legislature's action in enacting § 8-2h (a), which overruled McCallum v. Inland Wetlands Commission, 196 Conn. 218, 492 A.2d 508 (1985), and Johnson v. Zoning Board of Appeals, 2 Conn. App. 24, 475 A.2d 339 (1984). Because § 8-2h (a) became effective on October 1, 1989, before the trial court decided the plaintiffs' appeal, § 8-2h (a) controlled the trial court's analysis of the mootness issue. The defendants do not dispute that the zone change involved a small area of land. We note that the plaintiffs correctly concede that the commission properly held but one hearing on the applications. See Norris v. Planning & Zoning Commission, 156 Conn. 592, 595-96, 244 A.2d 378 (1968).

The plaintiff's petition for certification for appeal from the Appellate Court, 32 Conn. App. 395 (AC 11643), is denied.

The petition of the plaintiff Field View Farm Transportation, Inc., for certification for appeal from the Appellate Court, 31 Conn. App. 917 (AC 11708), is granted, limited to the following issue: "Does the notice to the employer pursuant to General Statutes § 31-293 require notice of an employment relationship between the person giving notice and its recipient?"

The defendant Harry Novick's petition for certification for appeal from the Appellate Court, 31 Conn. App. 933 (AC 12026), is denied.

The defendant's petition for certification for appeal from the Appellate Court (AC 12227) is denied.

Per Curiam. This court granted certification in this zoning appeal to consider whether General Statutes § 8-3 (g) and 8-3c (b) require the decision of a zoning commission to be set aside when a decision of the wetlands commission affecting the same property is subsequently set aside as having been illegal. The plaintiffs, Christine Arway et ah, appealed to the Superior Court from a decision of the defendant zoning commission of the town of Redding approving a site plan and special permit application filed by the defendants Richard Bloom and Walter S. Bloom. Sustaining the plaintiffs' appeal, the trial court concluded that the zoning decision had become procedurally indefensible after nullification of the wetlands decision. The Appellate Court granted the defendants' petition for certification to appeal and reversed the trial court's absolute linkage of the two statutes. Arway v. Bloom, 29 Conn. App. 469, 482, 615 A.2d 1075 (1992). Because the trial court had not considered substantive issues raised by the plaintiffs' appeal, the Appellate Court remanded the case for further proceedings to address those issues. Id., 481-82. We granted the plaintiffs' petition for certification to review the Appellate Court's disposition of this case. After examining the record on appeal and after considering the briefs and the arguments of the parties, we have concluded that the appeal in this case should be dismissed on the ground that certification was improvidently granted. The issues have been fully and persuasively considered in the opinion of the Appellate Court; Arway v. Bloom, supra, 473-81; and it would serve no useful purpose for us to repeat the discussion therein contained. See Fleet Bank of Connecticut v. Dowling, 225 Conn. 447, 449, 623 A.2d 1005 (1993); Hyatt v. Milford, 224 Conn. 441, 445, 619 A.2d 450 (1993). At oral argument before this court, the parties agreed that subsequent applications to the zoning commission have, for practical purposes, cured the procedural default upon which the trial court ruled and upon which the Appellate Court based its decision. There remain, however, the unresolved substantive issues with respect to which the Appellate Court properly-ordered further proceedings. The appeal is dismissed. General Statutes § 8-3 provides in relevant part: "establishment and CHANGING OF ZONING REGULATIONS AND DISTRICTS. ENFORCEMENT OF REGULATIONS. CERTIFICATION OF BUILDING PERMITS AND CERTIFICATES OF OCCUPANCY SITE PLANS. DISTRICT FOR WATER-DEPENDENT USES. . . . "(g) The zoning regulations may require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations. If a site plan application involves an activity regulated pursuant to sections 22a-36 to 22a-45, inclusive, the applicant shall submit an application for a permit to the agency responsible for administration of the inland wetlands regulations not later than the day such application is filed with the zoning commission. The decision of the zoning commission shall not be rendered on the site plan application until the inland wetlands agency has submitted a report with its final decision. In making its decision the zoning commission shall give due consideration to the report of the inland wetlands agency. A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning or inland wetlands regulations. . . ." (Emphasis added.) General Statutes § 8-3c provides in relevant part: "special permits, EXCEPTIONS AND EXEMPTIONS. HEARINGS. FILING REQUIREMENTS. . . . "(b) The zoning commission or combined planning and zoning commission of any municipality shall hold a public hearing on an application or request for a special permit or special exception, as provided in section 8-2, and on an application for a special exemption under section 8-2g. The commission shall not render a decision on the application until the inland wetlands agency has submitted a report with its final decision to such commission. In making its decision the zoning commission shall give due consideration to the report of the inland wetlands agency. . . .''(Emphasis added.) In addition to the named plaintiff, the other plaintiffs are Arthur Arway, Russell Kamensky, Susan Kamensky, Dan Smith, Chris Smith, Patricia Reichart, William Werfelman, Patricia Werfelman, Susan Butler, Smedley Butler, Mary Mullaney, Charles Mullaney, Donata Marcus, Kerin McKormick and Christine McKormick. All the plaintiffs are residents of the town of Redding. The trial court determined that all the plaintiffs were properly aggrieved parties. That determination has not been challenged. Arway v. Bloom, 29 Conn. App. 469, 470 n.2, 615 A.2d 1075 (1992). The town of Redding was also named as a defendant. On the petition for certification filed by the plaintiffs Christine Arway, Arthur Arway, Dan Smith, Kerin McKormick and Christine McKormick, we granted permission to appeal limited to the following issue: "Whether General Statutes § 8-3 (g) and 8-3c (b) require the decision of a zoning commission to be set aside when a decision of the wetlands commission affecting the same property is judicially determined to have been illegal?" Arway v. Bloom, 224 Conn. 924, 924-25, 618 A.2d 530 (1993). In the interests of judicial economy, these proceedings should, if possible, be consolidated on remand with the substantively similar challenges that the plaintiffs have raised on appeal with respect to the subsequent zoning applications filed by the individual defendants and granted by the defendant commission. '

The plaintiff's petition for certification for appeal from the Appellate Court, 31 Conn. App. 342 (AC 11375), is denied.

The plaintiff's petition for certification for appeal from the Appellate Court, 31 Conn. App. 621 (AC 11493), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 31 Conn. App. 105 (AC 11343), is granted, limited to the following issue: "Does General Statutes § 22a-44 (a) prohibit the commissioner of environmental protection from issuing an administrative order to abate a violation of the wet land laws once the commissioner has initiated an action for injunctive relief, even if the civil action for injunctive relief has been withdrawn without prejudice?" The Supreme Court docket number is SC 14836. Decided September 15, 1993 Patricia A. Horgan, assistant attorney general, in support of the petition.

The petition of the defendants Darien Asphalt Paving, Inc., and Darien Asphalt Paving, Inc., doing business as F.G.B. Paving and Excavating Company for certification for appeal from the Appellate Court, 31 Conn. App. 485 (AC 11260), is denied.

The plaintiff's petition for certification for appeal from the Appellate Court, 32 Conn. App. 289 (AC 11136), is denied.

Berdon, J. The principal issue in this workers' compensation case is whether the estate of a deceased worker is entitled to an award of permanent partial disability benefits if the worker, who was totally disabled, reached maximum medical improvement before his death, but died without an award having been made. The workers' compensation commissioner for the fourth district (commissioner) denied the plaintiffs' claim to an award, and the compensation review division (review division) affirmed. On appeal, the Appellate Court affirmed the decision of the review division. McCurdy v. State, 26 Conn. App. 466, 601 A.2d 560 (1992). We then granted certification to appeal limited to the following issue: "Did the Appellate Court properly determine that the claimant's estate was not entitled to permanent partial disability payments, under Connecticut General Statutes § 31-308 (b), from the date that he reached maximum medical improvement?" McCurdy v. State, 221 Conn. 920, 608 A.2d 686 (1992). We conclude that the estate was entitled to permanent partial disability benefits and therefore reverse the judgment of the Appellate Court. The essential facts are undisputed. On November 21, 1983, John Mollico, also known as John McCurdy (decedent), injured his back while employed by the defendant, the state of Connecticut. Until December 24,1987, when he died of causes unrelated to his injury, the decedent was paid temporary total disability benefits pursuant to General Statutes (Rev. to 1983) § 31-307. On October 1.5, 1987, his physician rated his injury as a 70 percent permanent partial disability of the lower back. On October 20,1987, the physician issued a supplemental report expressing his opinion that the dece dent's lower back had reached maximum medical improvement. On December 15, 1987, the decedent sought an award of permanent partial disability benefits pursuant to General Statutes (Rev. to 1983) § 31-308. The workers' compensation commissioner refused to award permanent partial disability benefits because the decedent remained totally disabled. Following the decedent's death from cancer, Jean McCurdy sought an award for the 70 percent permanent partial disability of her late husband. The estate of the decedent notified the state that it, too, claimed entitlement to a 70 percent permanent partial disability award in the event that Jean McCurdy were found not to be a dependent widow. The commissioner found that Jean McCurdy was neither the decedent's presumptive widow nor a dependent in fact, and therefore was not entitled to an award. The commissioner further found that the decedent's estate was not entitled to a permanent partial disability award. On appeal, the review division upheld the decision of the commissioner and the Appellate Court affirmed the decision of the review division. In its appeal to this court, the plaintiff estate claims that the Appellate Court improperly concluded that it was not entitled to an award of permanent partial disability benefits. The estate also claims that the Appellate Court incorrectly upheld the decision of the review division that the commissioner had not abused his discretion in denying the plaintiffs' motion to correct certain factual findings concerning the decedent. Although this claim concerning the commissioner's findings was not expressly certified, it falls within the scope of the certified issue and has been briefed by both parties. Accordingly, we will consider this claim as well. I As a preliminary matter, we must review the Appellate Court's conclusion concerning the propriety of the commissioner's refusal to amend his findings and conclusions. After the commissioner had issued his decision denying the plaintiffs' claim, the plaintiffs submitted a motion to correct the commissioner's findings. The motion was granted in part and denied in part. The commissioner specifically refused to incorporate the following findings proposed by the plaintiffs: "21. The decedent had a 70% permanent-partial disability of the low back. "22. The decedent had reached maximum medical improvement with reference to his low back prior to the date of his death." The plaintiffs challenged the commissioner's refusal to incorporate these two findings in their appeal to the review division. Although the review division's written decision did not specifically address this claim, it affirmed the commissioner's decision. On appeal, the Appellate Court held that the commissioner had properly refused to incorporate the two findings proposed by the plaintiffs. McCurdy v. State, supra, 26 Conn. App. 469. We disagree. At the hearing on their claim, the plaintiffs submitted letters from the decedent's physician stating that the decedent had a permanent 70 percent disability of his back and had reached the point of maximum medi cal improvement. There is absolutely no evidence in the record to contradict these conclusions. Further, the state conceded at oral argument that no contradictory evidence had been offered. " 'The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.' Adzima v. UAC/Norden Division, 177 Conn. 107, 118, 411 A.2d 924 (1979). To the extent that the commissioner's finding discloses facts, his finding cannot be changed unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed. Wheat v. Red Star Express Lines, 156 Conn. 245, 248, 240 A.2d 859 (1968)." (Emphasis added.) Grady v. St. Mary's Hospital, 179 Conn. 662, 669, 427 A.2d 842 (1980). Because the evidence concerning the decedent's degree of disability and attainment of maximum medical improvement was undisputed, the commissioner should have included this information in his factual findings. The state argues, to the contrary, that the commissioner had discretion to omit these facts because he concluded that the decedent was totally disabled. We disagree. A person may reach maximum medical improvement, have a permanent partial impairment, and be temporarily totally disabled from working, all at the same time. Osterlund v. State, 129 Conn. 591, 600, 30 A.2d 393 (1943). The commissioner's finding of total disability therefore did not preclude the additional findings proposed by the plaintiffs. Because these proposed findings were not precluded and were undisputed, we hold that the commissioner should have incorporated them in his findings. The Appellate Court was mistaken in ruling to the contrary. II We must next consider whether the Appellate Court should have recognized that the plaintiff estate was entitled to a permanent partial disability award, in view of the fact that the decedent had reached maximum medical improvement before his death. We conclude that the estate was entitled to an award. A We have long held that an injured worker has a right to a permanent partial disability award once he or she reaches maximum medical improvement. In Panico v. Sperry Engineering Co., 113 Conn. 707, 714, 156 A.2d 802 (1931), we explained that a permanent partial award "became due" when the worker reached maximum improvement. See also Stapf v. Savin, 125 Conn. 563, 565, 7 A.2d 226 (1939). In Osterlund v. State, supra, 597-600, we overruled Panico and Stapf to the extent that they precluded a commissioner from exercising his or her discretion to continue total disability payments to a worker who had reached maximum medical improvement but was still totally disabled from working. In Osterlund, we explained that "there might be, in case of a partial loss of function, a great disproportion between the amount of specific compensation provided and the actual effect of the injury, either from the standpoint of the employee's earning capac ity or the physical impairment he suffered." Id., 600. In a case such as this, however, in which the worker has reached maximum medical improvement and his permanent partial disability award has thereby vested, we hold that the commissioner does not have discretion to deny such an award if the worker requests that award, as the decedent did in this case. We therefore conclude that the decedent became entitled to a permanent partial disability award on December 15,1987, when he requested such an award at the hearing before the commissioner. B Having concluded that the decedent became entitled to a permanent partial disability award prior to his death, we must consider whether the decedent's estate is entitled to payment of this award. We conclude that it is. In Forkas v. International Silver Co., 100 Conn. 417, 423, 123 A. 831 (1924), we held that the estate of a deceased worker was entitled to the balance of permanent partial disability benefits that were awarded to the decedent before his death but remained unpaid. We concluded that because a permanent partial disability award "has all the earmarks of a statutory award of liquidated damages for the loss" of a body part or its use, there was no reason why the award should not survive the death of the worker. Id., 421-22; see also Cappellino v. Cheshire, 226 Conn. 569, 576, 628 A.2d 595 (1993). The state argues that Bassett v. Stratford Lumber Co., 105 Conn. 297, 135 A. 574 (1926), overruled Forkas to the extent that Forkas allowed the estate of a deceased worker to recover the portion of a permanent partial disability award that remained unpaid at the worker's death. Bassett, however, involved a situation where the estate was challenging an award of the balance of unpaid permanent partial disability benefits to the decedent's dependent widow. Where, as here, there are no dependents, we hold that a permanent partial disability award that became due to the decedent before his death is payable to the estate. The judgment of the Appellate Court is reversed, and the case is remanded to that court with direction to remand the case to the compensation review division to correct the commissioner's findings and to issue the appropriate award to the decedent's estate. In this opinion Peters, C. J., Norcott and Katz, Js., concurred. General Statutes § 31-301b provides: "Any party aggrieved by the decision of the compensation review board upon any question or questions of law arising in the proceedings may appeal the decision of the compensation review board to the appellate court." Jean McCurdy, the widow of the decedent, and the estate of John Mollico, also known as John McCurdy, were plaintiffs before the review division. Jean McCurdy did not appeal the review division's affirmance of the commissioner's finding that she was not a dependent to the Appellate Court. Therefore, the estate is the only plaintiff before this court. Practice Book § 4126 provides: "Appeals maybe taken to the supreme court in causes determined in the appellate court where the supreme court, upon petition of an aggrieved party or request of the appellate panel which heard the case, certifies the case for review." General Statutes (Rev. to 1983) § 31-307 provides in relevant part: "If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the injury; but the compensation shall in no case be more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred . No employee entitled to compensation under this section shall receive less than twenty per cent of the maximum weekly compensation rate, as provided in section 31-309, provided such minimum payment shall not exceed eighty per cent of the employee's average weekly wage, as determined under section 31-310; and such compensation shall not continue longer than the period of total incapacity. . . ." Section 31-307 currently provides: "(a) If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, the injured employee shall be paid a weekly compensation equal to eighty per cent of his average weekly earnings as of the date of the injury, calculated pursuant to section 31-310, after such earnings have been reduced by any deduction for federal taxes and for the Cederal Insurance Contributions Act made from such employee's total wages received during the period of calculation of the employee's average weekly wage pursuant to said section 31-310; but the compensation shall not be more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred. No employee entitled to compensation under this section shall receive less than twenty per cent of the maximum weekly compensation rate, as provided in section 31-309, provided the minimum payment shall not exceed eighty per cent of the employee's average weekly wage, as determined under section 31-310, and the compensation shall not continue longer than the period of total incapacity." General Statutes (Rev. to 1983) § 31-308 provides in relevant part: "(b) With respect to the following-described injuries the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be sixty-six and two-thirds per cent of the average weekly earnings of the injured employee, but in no case more than the maximum weekly benefit rate set forth in section 31-309, or less than twenty dollars weekly . . . (13) for the loss of the use of the back, that number of weeks which the proportion of incapacity represents to the maximum of five hundred and twenty weeks. If the injury consists of the loss of a substantial part of a member resulting in a permanent partial loss of the use of a member, or if the injury results in a permanent partial loss of function, the commissioner may, in his discretion, in lieu of other compensation, award to the injured person such a proportion of the sum herein provided for the total loss of, or the loss of the use of, such member or for incapacity or both as represents the proportion of total loss or loss of use found to exist, and any voluntary agreement submitted in which the basis of settlement is such proportionate payment may, if otherwise conformable to the provisions of this chapter, be approved by the commissioner in his discretion." Section 31-308 currently provides in part: "(b) With respect to the following injuries, the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be eighty per cent of the average weekly earnings of the injured employee, calculated pursuant to section 31-310, after such earnings have been reduced by any deduction for federal taxes and for the federal Insurance Contributions Act made from such employee's total wages received during the period of calculation of the employee's average weekly wage pursuant to said section 31-310, but in no case more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309, or less than fifty dollars weekly. All of the following injuries include the loss of the member and the complete and permanent loss of use of the member referred to . . . Back . . . Number of weeks which the proportion of incapacity represents to a maximum of 520 weeks. . . . "If the injury consists of the loss of a substantial part of a member resulting in a permanent partial loss of the use of a member, or if the injury results in a permanent partial loss of function, the commissioner may, in his discretion, in lieu of other compensation, award to the injured employee the proportion of the sum provided in this subsection for the total loss of, or the loss of the use of, the member or for incapacity or both that represents the proportion of total loss or loss of use found to exist, and any voluntary agreement submitted in which the basis of settlement is such proportionate payment may, if otherwise conformable to the provisions of this chapter, be approved by the commissioner in his discretion." Permanent partial disability awards survive an employee's death and are payable to the employee's dependents. See Cappellino v. Cheshire, 226 Conn. 569, 576, 628 A.2d 595 (1993). The plaintiff estate's brief claims that if the commissioner's conclusion that the estate is not entitled to benefits were correct, then the workers' compensation statutes would violate the equal protection clauses of the state and federal constitutions. In view of our decision today, we need not reach this claim. The state relies on the statement in Scalora v. Dattco, Inc., 39 Conn. Sup. 449, 452, 466 A.2d 334 (1983), that "one cannot be at once totally and partially incapacitated." We cited this statement in Paternostro v. Edward Coon Co., 217 Conn. 42, 49, 583 A.2d 1293 (1991), in the course of holding that the Workers' Compensation Act does not permit the concurrent payment of permanent partial disability benefits and temporary total disability benefits. In the context of that case, however, the statement was dictum and it is not binding on us here. As a matter of common sense, it is clear that a worker can at once be temporarily totally disabled and permanently partially disabled; see Osterlund v. State, 129 Conn. 591, 600, 30 A.2d 393 (1943); although he cannot collect for both at the same time. Cappellino v. Cheshire, 226 Conn. 569, 577-78, 628 A.2d 595 (1993). Because the decedent became entitled to an award on December 15, 1987, only temporary total disability payments that were made to him between that date and the date of his death can be deducted from a permanent partial disability award.

The plaintiff's petition for certification for appeal from the Appellate Court, 32 Conn. App. 56 (AC 10654), is granted, limited to the following issues: "Whether the Appellate Court correctly held that the defendant hospital need only substantially comply with its bylaws when terminating a physician's medical staff privileges and whether the failure to renew the plaintiff's medical staff privileges constituted a breach of those medical staff bylaws?"

The plaintiff's petition for certification for appeal from the Appellate Court, 32 Conn. App. 515 (AC 11497), is granted, limited to the following issue: "Was the Appellate Court correct in concluding that the trial court properly determined that the plaintiff's failure to meet the general health, safety and welfare requirements set forth in the town's zoning regulations provided an adequate basis for the defendant's denial of a special permit application, even though the plaintiff's application complied with all of the technical requirements of the regulations applicable to special permits?"

Borden, J. The dispositive issue of this appeal is whether the filing in court of an administrative appeal beyond the forty-five day period provided in General Statutes § 4-183 (c) of the Uniform Administrative Procedure Act (UAPA) deprives the trial court of subject matter jurisdiction over the administrative appeal. The plaintiff, the Glastonbury Volunteer Ambulance Association, Inc., appeals from the judgment of the trial court dismissing the plaintiffs appeal from a decision of the defendant freedom of information commission (commission). The commission had concluded that the plaintiff is a "public agency" within the meaning of General Statutes § 1-18a (a) and is therefore subject to the Freedom of Information Act, title 1, chapter 3 of the General Statutes (act). The plaintiff claims that the trial court improperly dismissed its appeal because the forty-five day time period provided in § 4-183 (c) applies only to the service of an appeal and does not apply to the filing of an administrative appeal. The plaintiff also claims that, even if the time period applies to the filing of an appeal, a failure to meet that time limitation is not a matter of subject matter jurisdiction. We affirm the judgment of the trial court. The facts are undisputed. In March, 1991, Richard Bergen and Susan Ellis filed a complaint with the commission, claiming that the plaintiff had violated certain provisions of the act. In response, the plaintiff asserted that it was not a "public agency" subject to the act. After a hearing, the commission concluded that the plaintiff was a public agency within the meaning of the act and ordered the plaintiff to comply with the act. On November 20, 1991, the commission mailed its final decision to all parties. At the plaintiff's direction, a deputy sheriff served copies of the plaintiff's appeal from the commission's final decision on all the parties on January 2, 1992, and on the same day the sheriff mailed the appeal, together with his return of service, to the clerk of the trial court. The clerk of the court received the appeal on January 9,1992, fifty days after the mailing of the commission's decision. The trial court, having examined the file, determined sua sponte that its subject matter jurisdiction was in question because the plaintiff had filed the appeal beyond the forty-five day deadline provided in § 4-183 (c). After a hearing, the trial court dismissed the appeal for lack of subject matter jurisdiction. This appeal followed. The plaintiff does not dispute that the UAPA governs its right to appeal from the decision of the commission. Nor does the plaintiff dispute that, prior to the amendments to the UAPA in 1988, the failure to file an appeal within the time period set by § 4-183 deprived the trial court of subject matter jurisdiction. Rogers v. Commission on Human Rights & Opportunities, 195 Conn. 543, 550, 489 A.2d 368 (1985). The plaintiff claims, however, that the amendments to § 4-183 enacted by the legislature in 1988; see Public Acts 1988, No. 88-317, § 23; eliminated the forty-five day period for filing an appeal and substituted therefor the general return of process provisions of General Statutes § 52-48 and 52-46a. Specifically, the plaintiff argues that the forty-five day requirement applies only to the service of the appeal because, in the first sentence of § 4-183 (c), the legislature used the word "shall" before the word "serve" but not before the word "file." We disagree. Twice recently we have stated that § 4-183 (c), as revised in 1988, requires that an appeal be filed within the forty-five day period. "Section 4-183 (c), as revised by [Public Acts 1988, No. 88-317] changed the time period to forty-five days for both the filing of an administrative appeal and the service of the appeal upon all parties of record." Raines v. Freedom of Information Commission, 221 Conn. 482, 487, 604 A.2d 819 (1992). "Section 4-183 (c) provides, in general terms, that an administrative appeal must, within forty-five days of delivery of the final decision to the person appealing, be filed with the court and served on the agency or the attorney general and on each party listed in the decision." Tolly v. Department of Human Resources, 225 Conn. 13, 19, 621 A.2d 719 (1993). Although the precise issue presented in this case was not before us in those cases, upon plenary consideration of the issue now before us, we conclude that our previous dicta were correct. The plain language of § 4-183 (c), read in the light of ordinary rules of English grammar and sentence structure, compels the conclusion that both the filing and the service of the appeal must be accomplished within the forty-five day period. The first sentence of the section begins with the adverbial phrase, "[w]ithin forty-five days after mailing of the final decision." The subject of the sentence is "person." Two verbs then follow: "serve" and "file." "Serve" is preceded by "shall," but "file" is not. The plainly evident intent, however, is that "shall" is to be read together with both "serve" and "file," and that the adverbial phrase, "within forty-five days," modifies both verbs. This conclusion becomes even clearer upon reading the second sentence, which begins with the adverbial phrase, "[w]ithin that time." Thus, throughout the first two sentences there is an emphasis on completion of required acts within forty-five days. The conclusion that § 4-183 (c) requires both the filing and the service of the appeal within the forty-five day period is buttressed by its legislative history. Section 4-183 (c) is the outgrowth of the fact that "[i]n 1988, the legislature enacted a comprehensive revision of the UAPA, based upon recommendations made after nearly three years of study and review by the Connecticut law revision commission." Tolly v. Department of Human Resources, supra, 26. With only slight alteration, § 24 of the bill proposed by the law revision commission ultimately became General Statutes § 4-183 (c). Compare 1987 Thirteenth Annual Report of the Connecticut Law Revision Commission to the General Assembly, March, 1988, p. 63 (law revision commission report). The commentary to § 24 of the proposal makes clear not only that service must be made within forty-five days, but that "[t]he appeal must also be filed in the court within forty-five days." Law revision commission report, p. 39. There is nothing in the committee hearings or floor debate on Public Acts 1988, No. 88-317 to suggest that the legislature intended to depart from this earlier and clearly expressed intent. Indeed, the plaintiffs argument that the legislature intended to incorporate into § 4-183 (c) the return of process provisions of § 52-48 and 52-46a finds no support in either the language or the legislative history of § 4-183 (c). Moreover, the plaintiffs argument is contrary to the general intent of Public Acts 1988, No. 88-317, namely, "to simplify and make more fair the process of appealing an agency decision under the UAPA." Tolly v. Department of Human Resources, supra, 29-30. Having concluded that § 4-183 (c) requires the filing of an appeal within the forty-five day time period, we turn to the question of whether the 1988 legislative amendments to the UAPA reversed the prior law that a failure to meet that time limitation deprives the trial court of subject matter jurisdiction over the appeal. See Rogers v. Commission on Human Rights & Opportunities, supra. We conclude that the amendments did not change the existing law, so that a failure to meet the time limitation remains a subject matter jurisdictional defect. In analyzing whether a statutory time limitation affects the right to appeal, we look to whether the legislature intended the time limitation to be jurisdictional. The legislative intent is to be discerned by reference to the language of the statute, its legislative history and surrounding circumstances, the policy the limitation was designed to implement, and the statute's relationship to the existing legislation and common law principles governing the same subject matter. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993). In light of the strong presumption in favor of jurisdiction, "we require a strong showing of a legislative intent to create a time limitation that, in the event of noncompliance, acts as a subject matter jurisdictional bar." Id., 765. We conclude that such a showing has been made in this case. The legislature intended the forty-five day time limitation for filing of an appeal under the UAPA to remain a prerequisite to subject matter jurisdiction. Our conclusion is supported by the language of the statute, particularly in light of its jurisprudential background and legislative history. Prior to the 1988 amendments, which took effect July 1,1989, General Statutes (Rev. to 1989) § 4-183 (b) provided: "Proceedings for such appeal shall be insti tuted by filing a petition . . . within forty-five days after mailing of the notice of the final decision of the agency . . . ." That language had been held to limit subject matter jurisdiction. Rogers v. Commission on Human Rights & Opportunities, supra. Although the 1988 amendments that resulted in § 4-183 (c); see footnote 2; changed the terminology from "petition" to "appeal," and rearranged the sentence structure for purposes of clarity, those linguistic differences are too slight to convince us that the legislature intended to change the law regarding the consequence of a failure to meet the statutory deadline. Our conclusion is reinforced by the second sentence of § 4-183 (c), which provides that a failure to make timely service "on parties other than the agency . . . shall not deprive the court of jurisdiction over the appeal," together with the provision in § 4-183 (d) that "[i]f the failure to make service causes prejudice . . . to the agency, the court, after hearing, may dismiss the appeal." We resolved the apparent conflict between these two provisions by reading the language of § 4-183 (c) "as imposing a time limitation with respect to subject matter jurisdiction. If there is no service at all on the agency within the forty-five day period, the court lacks subject matter jurisdiction over the appeal by virtue of the clear implication of the language in § 4-183 (c), read against the background of the preexisting law." Tolly v. Department of Human Resources, supra, 28. If there is merely an arguable defect in the process timely served on the agency, however, "the court does not lack subject matter jurisdiction over the appeal. Under those circumstances, § 4-183 (d) applies, and the appeal is dismissable only upon a finding of prejudice to the agency." Id., 28-29. The point of this analysis is that the legislature, in amending the UAPA in 1988, certainly was aware of the need to amend the prior law regarding subject matter jurisdiction, and enacted amendments applicable to appeals that were either untimely served on parties other than the agency or timely served on the agency but pursuant to defective process. Id., 27-29. The legislature's failure to include in this amendment, or in the debate leading to its enactment, any reference to an untimely filed appeal compels the inference that it intended to leave in place the prior law in that regard. This inference is strengthened by the fact that the proposal emanating from the law revision commission that became Public Acts 1988, No. 88-317 was "the result of numerous meetings between administrative law experts, including representatives of the state agencies, the Attorney General's Office, and legal practitioners." Law revision commission report, p. 5. Given the makeup of the advisory drafting committee of the commission, we must presume that, when the commis sion reported to the legislature that "[t]he appeal must also be filed in the court within forty-five days"; law revision commission report, p. 39; the commission was aware of the jurisdictional implications of that requirement. The judgment is affirmed. In this opinion the other justices concurred. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). General Statutes § 4-183 (c) provides: "Within forty-five days after mailing of the final decision under section 4-180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the attorney general in Hartford and file the appeal with the clerk of the superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the person appealing resides or, if that person is not a resident of this state, with the clerk of the court for the judicial district of Hartford-New Britain. Within that time, the person appealing shall also serve a copy of the appeal on each party listed in the final decision at the address shown in the decision, provided failure to make such service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal. Service of the appeal shall be made by (1) United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a sheriff or other officer, or (2) personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions." Also named as defendants were Richard N. Bergen and Susan G. Ellis, who are inactive members of the plaintiff association. They joined in the brief of the defendant commission. General Statutes § 1-18a provides in pertinent part: "definitions. As used in this chapter, the following words and phrases shall have the following meanings, except where such terms are used in a context which clearly indicates the contrary: "(a) 'Public agency' or 'agency' means any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, com mission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official or body or committee thereof but only in respect to its or their administrative functions." Although the plaintiff did not explicitly make this claim either in the trial court or in its brief to this court, it did so at oral argument in this court. Despite this procedural lacuna, however, it is necessary to reach the issue, because a question relating to subject matter jurisdiction must always be addressed whenever it comes to the attention of the court. General Statutes § l-21i (d) provides in pertinent part: "Any party aggrieved by the decision of said [freedom of information] commission may appeal therefrom, in accordance with the provisions of section 4-183." General Statutes $ 52-48 provides: "return DAY OF process, (a) Process in civil actions, including transfers and applications for relief or removal, but not including summary process actions, brought to the superior court may be made returnable on any Tuesday in any month. The return day in any summary process action may be any week day, Monday through Saturday, except a holiday. "(b) All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held." General Statutes § 52-46a provides: "return of process. Process in civil actions returnable to the supreme court shall be returned to its clerk at least twenty days before the return day and, if returnable to the superior court, except process in summary process actions, to the clerk of such court at least six days before the return day." General Statutes (Rev. to 1989) § 4-183 (b) provided: "Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides or if such person is not a resident of this state to the court for the judicial district of Hartford-New Britain within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after mailing of the notice of the decision thereon. Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, within thirty days after mailing of the notice of the decision thereon, except that service upon an agency may be made by the appellant mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford." General Statutes § 4-183 (d) provides: "The person appealing, not later than fifteen days after filing the appeal, shall file or cause to be filed with the clerk of the court an affidavit, or the sheriffs return, stating the date and manner in which a copy of the appeal was served on each party and on the agency that rendered the final decision, and, if service was not made on a party, the reason for failure to make service. If the failure to make service causes prejudice to any party to the appeal or to the agency, the court, after hearing, may dismiss the appeal."

The defendant's petition for certification for appeal from the Appellate Court, 31 Conn. App. 928 (AC 11145), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 31 Conn. App. 669 (AC 11815), is denied.

Norcott, J. After a jury trial, the defendant, Murray Colton, was convicted of the crime of murder in violation of General Statutes § 53a-54a and BSa-S. The trial court sentenced the defendant to a term of imprisonment of fifty years. The defendant appealed to this court pursuant to General Statutes § 51-199 (b) (3). The defendant claims on appeal that the trial court: (1) violated the defendant's constitutional right to confront witnesses by precluding him from admitting certain evidence showing motive and bias of the state's chief witness; (2) improperly permitted an unrepresentative viewing of the crime scene by the jury; (3) abused its discretion by making certain evidentiary rulings; (4) improperly instructed the jury on consciousness of guilt and reasonable doubt; (5) improperly denied the defendant's pretrial motions for discovery and production of exculpatory information regarding the identity of other persons having a motive to harm the victim, and improperly failed to sanction the state for untimely disclosure of such information; and (6) failed to follow proper procedures in denying the defendant's request for access to medical and psychiatric records of the state's chief witness. We agree with the defendant on the first issue and, on that basis, we reverse the judgment of the trial court and remand the case for a new trial. On January 13,1987, the body of the victim, Patricia Konesky, was discovered in the third base dugout of the Kimberly Avenue baseball field in New Haven. The victim had suffered severe blunt trauma to the head and had been stabbed approximately 248 times in the face, neck and chest. The exact time of the victim's death could not be established, but she had last been seen alive on the night of January 12, 1987. At the time of her death, the victim was a drug addict, who lived on the streets and operated as an informant for the New Haven police department. According to the testimony of one of the victim's police contacts, the victim had been providing information on narcotics activities in the Kimberly Avenue and Hill sections of New Haven for approximately nine months prior to her death. At least fifteen people, including the defendant's father, had been arrested and prosecuted as a result of that information. The police investigation in the months following the victim's death never culminated in an arrest. The crime remained unsolved for more than one year. On February 5, 1988, the state posted notices in the Kimberly Square neighborhood offering a $20,000 reward for information leading to the arrest and conviction of the person of persons responsible for the victim's murder. Several weeks later, while at the New Haven police station under arrest for prostitution, Janice Tourangeau, who had previously given a statement relating to the victim's murder to the police in January, 1987, stated for the first time that she had been at the scene of the crime at the time of the victim's murder. Tourangeau's statement to the police placed the defendant with the victim at the scene of the crime and implicated him, together with another individual who was never located, in the murder. At that time, Tourangeau expressed no interest in receiving the reward money. On the basis of this information, the police revitalized the investigation and focused on the defend ant, who had never been considered a suspect in the initial investigation in 1987. In June, 1988, the defendant was arrested and charged with the victim's murder. The state's theory was that the defendant had killed the victim in retaliation for the victim's informing the police of alleged narcotics activity of the defendant's father, which had led to his father's arrest and conviction. The defendant's first two trials, conducted in 1989 and 1990, resulted in hung juries. After a third jury trial conducted in 1991, the defendant was convicted of murder and was sentenced to fifty years in prison. Shortly thereafter, Tourangeau collected $14,000 from the state, which represented her share of the reward. Further facts will be discussed as they become relevant. I The defendant first claims that the trial court violated his right to confront witnesses and to present a defense under the sixth and fourteenth amendments to the United States constitution by precluding the admission of certain evidence tending to show the motive, bias or interest of Tourangeau, the state's chief witness. The defendant claims that the exclusion of this motive evidence in a case in which the credibility of Tourangeau was a critical issue was harmful and warrants a new trial. We agree. At trial, Tourangeau gave the following account of her activities on the night of the victim's murder. On the night of January 12, 1987, Tourangeau had been dropped off on Kimberly Avenue by her friend, Cathleen Jones. Tourangeau was looking for the victim because she wanted the victim to obtain drugs for her. Tourangeau found the victim at Don Phillips Cafe, a bar owned by the defendant's father. The victim agreed to take drugs with Tourangeau, but told Tourangeau that Tourangeau would have to wait because she had something to do first. The victim told Tourangeau that she had to meet someone on Kimberly Avenue and, after Tourangeau persisted in asking to go along, the victim agreed that Tourangeau could accompany her as long as she remained unseen. The two separated briefly and were to meet on Kimberly Avenue near Saint Peter's Church. Tourangeau arrived at the church and, shortly thereafter, saw the victim on the corner of Kimberly Avenue and Second Street. Tourangeau approached the victim and asked if she had the drugs yet. The victim responded that she had to go to Saint Peter's Street and reminded Tourangeau to remain out of sight. The victim and Tourangeau took separate routes to Saint Peter's Street. Tourangeau walked down Kimberly Avenue to a path that led to the baseball field, which was located at the end of Saint Peter's Street. She walked several steps out from the path onto the field when she saw the victim standing with the defendant by a manhole cover. Tourangeau backed up to some bushes at the edge of the field to stay out of sight, and observed the victim and the defendant walk to the third base dugout and sit on the dugout bench. At this point Tourangeau was positioned approximately 190 feet from the third base dugout. Tourangeau observed the defendant suddenly stand up and pull the victim by her hair. Tourangeau then saw another man come from the side of the dugout and hit the victim on the side of the head. She described this man as having dark hair and a mustache, wearing tan boots and probably being Hispanic because he had dark skin. On cross-examination Tourangeau testified that when the victim had been struck she had seen something squirt out of the victim's head and had heard a "squishing sound." As a result of this blow, the victim was knocked forward facing the ground. Tourangeau then saw both the defendant and the second man kick the victim. At this point Tourangeau ran from the area. The second man noticed Tourangeau and yelled after her. Tourangeau kept running and sensed someone running behind her. She ran out onto Kimberly Avenue where she flagged down a car and jumped in. The driver of the car drove Tourangeau to her home. Tourangeau claimed that she then went into the bathroom and lay down in the bathtub until dawn, "put[ting] it together." Tourangeau did not learn that the victim had been killed until she watched the evening news on television later that day. During both the 6 p.m. and the 11 p.m. news broadcasts reporting the discovery of the victim's body, Tourangeau stated to her companions, "That's Patty," although neither broadcast had mentioned the name of the victim. Tourangeau covered up for knowing the identity of the person on the news by saying that she had recognized the victim's boots. She never told anyone about her presence at the field the night before because she was afraid of retaliation and of being known as a snitch on the street and therefore being unable to get drugs. When Tourangeau was interviewed by the police one week later, she did not mention what she had seen, and provided no information about the murder until March, 1988. The defendant denied any involvement in the murder. He admitted in 1987, and again after his arrest in 1988, that he had seen the victim at his father's bar on the night before her body was discovered. He testified that he had gone to a concert on the night of January 12, 1987, and had arrived home at approximately 10:30 p.m. The defendant testified further that he had spoken to the victim in his father's bar, and that his last contact with her had been on the street outside the bar. The defendant testified that, after the bar closed around 12 a.m., he had asked his father if he could borrow his father's car to see his girlfriend. Concerned that the defendant was too drunk to drive, his father had driven him to his girlfriend's house, had convinced him not to go to the door because of the lateness of the hour, and had then driven him home. The defendant testified that, once home, he had passed out in front of the television. The state conceded at trial that in order to convict the defendant of murder, the jury would have to credit the testimony of Tourangeau. The credibility of Tourangeau's account of the night of the murder, including her reasons for coming forward some fourteen months later, was therefore a critical issue at trial. On direct examination, Tourangeau testified that, before she had spoken to the police, she had been aware of the $20,000 reward offer from posters that had been placed around the neighborhood. She also testified that she initially had believed that she was not eligible for the reward because she thought that it was for the victim's family. The first time she had become aware that she might be eligible for the reward, Tourangeau testified, was when she had given her statement to the detectives. Tourangeau also testified on direct examination that, at the time of the murder, she had been addicted to heroin. She described her lifestyle at that time as a street life in which her principal interests were surviving and getting drugs, and explained that one of the reasons she had not come forward sooner had been the difficulty she would have had obtaining drugs if she had become known as a snitch. Tourangeau testified that prostitution was how she had made money at that time, and that she would spend all of her earnings on drugs. Tourangeau further testified that at the present time she was no longer addicted to drugs or engaged in prostitution. She stated that she had managed to overcome her addiction while in jail in 1989. When questioned about her desire for the reward money, Tourangeau testified that when she had first come forward she had had no interest in the reward. She maintained, both in her statement to the police and at trial, that the sole motivating factor in deciding to reveal what she had seen was the emotional anguish she experienced from "keeping it in." She also testified that she had become interested in the reward only as "soon as my life started to change." When asked to describe this change, Tourangeau testified: "I've gained part of a family back. I'm not a drug user. I need a new life. . I need to start my family and myself on a new life." On cross-examination, defense counsel pursued at length Tourangeau's reasons for coming forward. He elicited from Tourangeau that her drug addiction required as much money as she could obtain, although she denied that she had come forward to get the reward to support her drug habit. Tourangeau stated that she had worked as a prostitute to support her drug habit, and that, during the time she used drugs, she "was prepared to engage in an act of prostitution any night." Tourangeau testified that she had needed money in 1986, 1987 and 1988 because those were her "addiction years," but that since June, 1989, she had overcome her addiction and "had a different lifestyle looking at me" so she did not need the money. Tourangeau stated that she had come forward because of the guilt she felt for not having done anything to save the victim, and claimed that the events of that night had weighed on her mind so much that she had sought professional counseling. She testified that she had not initially intended to claim the reward, but that she had decided to claim it after the first trial because of what it had done to her personal and social life, particularly the embarrassment it had caused her former husband and her children. She stated that the money would "take me and my kids away from here and just begin again." Defense counsel repeatedly questioned Tourangeau regarding her assertion that she no longer was a drug user or engaged in prostitution after October, 1989. He elicited that Tourangeau had been arrested in connection with the possession of heroin in the summer of 1990, but Tourangeau testified that she had purchased the heroin for a friend who did not know where to get it. Tourangeau insisted that she had not used drugs since she was released from jail in October, 1989, and explained: "[TJhere comes a time in everybody's life when they get too old to play them games on the street and they think a little differently and they want a few more things in life." Tourangeau also testified that, although she was not employed, she was not concerned about money because she had been given financial assistance since she stopped using drugs by either her former husband or her boyfriend, Dennis Maluk. The defendant's claim is that the trial court improperly excluded evidence that would have contradicted Tourangeau's testimony regarding her new lifestyle and her motivation for coming forward, thus depriving the jury of the opportunity accurately to assess her credibility. This claim challenges several evidentiary rulings of the trial court that can be grouped into three categories. First, the defendant sought to introduce evidence that Tourangeau's assertion that she was no longer addicted to drugs and no longer engaging in prostitution was patently false. During cross-examination of Tourangeau, the defendant asked Tourangeau whether she knew Michael Brown. Upon the state's request, the jury was then excused and the defendant presented an offer of proof. His counsel stated that Brown was a personal acquaintance of Tourangeau who would testify that he and Tourangeau had taken drugs together numerous times throughout 1990, including during the defendant's second trial, and that Tourangeau had continued to engage in prostitution throughout 1990. Defense counsel argued that he should be permitted to question Tourangeau about these subjects before he called Brown as a witness. The state argued that defense counsel should be permitted to ask the questions of Tourangeau, but that he would be "stuck" with her answers. Because Tourangeau's drug use or prostitution was a collateral matter, the state argued, the defendant should not.be permitted to introduce extrinsic evidence of such behavior on the part of Tourangeau to contradict her testimony. The defendant argued that the proffered evidence went directly to Tourangeau's motive for testifying, which was not a collateral issue, and therefore extrinsic evidence to contradict her was admissible. The trial court ruled that Tourangeau's alleged drug use and prostitution at a time when she claimed to have had no longer engaged in those activities were collateral matters. The court explained as to these matters: "Now, Mr. Rosenthal, that doesn't mean you cannot ask the witness the questions to see what her answer is. All it means is if her answer is in the negative you cannot bring in extrinsic evidence on that, those pre cise questions, but I think you've got a right to ask the witness the questions to at least find out what her answer is. . . . Depending on the answer, if it's in the negative, you're going to be stuck with that answer." The trial court adhered to this decision whenever the defendant attempted to admit evidence of drug use and prostitution by Tourangeau after 1989, the year in which she claimed to have overcome her addiction. During the defense case, an offer of proof was made in which Brown testified that he had known Tourangeau for fifteen years, that he had seen her four or five times a week during 1990, that Tourangeau had ingested narcotics with him almost daily in 1990, that they had used drugs together during the defendant's second trial before Tourangeau would go to court, and that he had given Tourangeau rides to places where she would prostitute herself in 1990. Again the trial court ruled that this evidence did not bear sufficiently on the motive or bias of Tourangeau and was therefore inadmissible. Additionally, and also on the basis that Tourangeau's drug use and prostitution were collateral matters, the trial court did not admit the testimony of Jacqueline Boyles, a close acquaintance of Tourangeau. In an offer of proof during the defense case, Boyles testified that several weeks before this third trial commenced, she had witnessed Tourangeau at a McDonald's restaurant in Milford climbing in and out of trucks in a manner consistent with the practice of prostitutes at that location. Boyles also testified that Tourangeau had previously engaged in prostitution at that location. The trial court also did not admit a police report evidencing acts suggestive of prostitution in October, 1990, again on the basis that extrinsic evidence would not be allowed on a collateral matter. The second category of evidence that the defendant sought to introduce in order to contradict aspects of Tourangeau's testimony was evidence that Tourangeau had suffered from severe depression and had had emotional problems that predated the victim's murder. Throughout her direct and cross-examination, Tourangeau maintained that she had been motivated to come forward solely by the mental burden of concealing what she knew, and not because of the reward money. The defendant sought to contradict this claimed motivation for coming forward by introducing evidence of a long history Tourangeau had had of depression and emotional problems that had nothing to do with the victim's murder. In this regard, the defendant, in an offer of proof during recross-examination, elicited from Tourangeau that she had experienced severe depression and suicidal tendencies that had led to a hospital admission in August, 1986, five months before the victim's murder. The defendant also offered to prove that Tourangeau's problems of drug addiction, money difficulties and chronic depression were reflected in a September, 1987 hospital admission and a January, 1988 admission to the Connecticut Mental Health Center. The defendant argued to the court that the jury could not properly evaluate Tourangeau's testimony that she came forward because she was emotionally wrought, needed to feel better and needed professional counseling without also hearing that Tourangeau had struggled with depression for a good part of her life for reasons unrelated to the murder. The trial court did not admit this evidence because it was irrelevant and outside the scope of redirect examination. Also, on cross-examination of Officer Paul Welch, who had processed Tourangeau's arrest on the night she gave the police her statement about the murder and who had testified that Tourangeau had been very emotional that night, the defendant was precluded from eliciting that Welch had had no knowledge of Tourangeau's history of emotional problems. The trial court also precluded this testimony on the ground that it was irrelevant. Finally, the defendant sought to introduce evidence to refute Tourangeau's testimony that, despite the fact that she was not employed, money was not a motivating consideration for her because she received whatever amounts she needed from either her former husband or Maluk. In an offer of proof through Boyles, who had lived with Tourangeau for a period of time in 1987 and was familiar with Tourangeau's relationship with her former husband, the defendant elicited that Tourangeau had been beaten by her former husband for prostituting herself and that she lived in fear of him. The defendant argued that the relationship between Tourangeau and the sources of her financial support was relevant to the question of whether she in fact had such support and therefore was not motivated by money to testify. The trial court ruled that this evidence was irrelevant, despite the defendant's claim of relevance to Tourangeau's motive for testifying. The defendant elicited from Tourangeau on cross-examination that she and Maluk had had a disagreement while they were living together that resulted in Maluk's calling the police. The defendant also elicited that Tourangeau had called the police several times because of arguments she had had with her former husband. During the defense case, the defendant offered into evidence several police reports: one indicating that Maluk had called the police to report that Tourangeau had threatened to hurt herself and blame it on him; and others indicating repeated conflicts between Tourangeau and her former husband. The defendant argued that these reports brought into question Tourangeau's claimed lack of concern for money and her alleged motivation for now claiming the reward, and thus were probative of her motive, bias or interest. The defendant also argued that the report concerning Maluk indicated a pattern by Tourangeau of falsely accusing someone when it suited her needs. The trial court sustained the state's objections to the admission of this evidence, stating that these issues were collateral, that the proffered evidence was cumulative and of only slight probative value, and that the defendant's constitutional right to attack Tourangeau's credibility had been adequately protected. The defendant argues on appeal that these rulings of the trial court precluded him from exposing to the jury evidence that contradicted Tourangeau's claimed motive for testifying, and thereby violated his rights to confrontation and to present a defense under the sixth and fourteenth amendments to the United States constitution. He contends that the trial court improperly concluded that the issues of Tourangeau's drug use, prostitution, psychiatric history, and relationships with her husband and Maluk were collateral, and that extrinsic evidence probative of these issues was therefore inadmissible. The defendant argues that these rulings required him to be "stuck" with Tourangeau's answers on issues relating to her motive, bias and interest, a matter that is never collateral and for which the introduction of extrinsic evidence is allowed. The exclusion of this evidence, in a case that turned on the credibility of this witness, the defendant argues, amounted to reversible error. We agree. Ordinarily, extrinsic evidence of prior inconsistent statements cannot be used to contradict the testimony of a witness, and this rule is strictly observed when the witness' testimony relates to a collateral matter. State v. Burns, 173 Conn. 317, 327, 377 A.2d 1082 (1977). "A witness may not be impeached by contradicting his or her testimony as to collateral matters, that is, matters that are not directly relevant and material to the merits of the case. [Id.]; State v. Carbone, 172 Conn. 242, 262, 374 A.2d 215, cert. denied, 431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977); State v. Wilson, 158 Conn. 321, 324, 260 A.2d 571 (1969)." State v. Negron, 221 Conn. 315, 327-28, 603 A.2d 1138 (1992). Thus, "the answer of the witness on cross-examination to a collateral matter is conclusive and cannot be later contradicted." C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.24.4. Extrinsic evidence may be admitted, however, if the subject matter of the testimony is not collateral, that is, if it is relevant to a material issue in the case apart from its tendency to contradict the witness. State v. Bums, supra, 327; see also 1 C. McCormick, Evidence (4th Ed. 1992) § 49. Evidence tending to show the motive, bias or interest of an important witness is never collateral or irrelevant. " ' "It may be . . . the very key to an intelligent appraisal of the testimony of the [witness]. Barnard v. United States, 342 F.2d 309, 317 (9th Cir. 1965)." ' " State v. Milum, 197 Conn. 602, 610, 500 A.2d 555 (1985); see also Davis v. Alaska, 415 U.S. 308, 316-17, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); 1 C. McCormick, supra, § 39, p. 136. The determination of whether a matter is relevant or collateral, and the scope and extent of cross-examination, generally rests within the sound discretion of the trial court. State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987); State v. Ontra, 178 Conn. 480, 488, 423 A.2d 134 (1979); Todd v. Bradley, 99 Conn. 307, 323-24, 122 A. 68 (1923). This discretion arises, however, only after the defendant has been permitted cross-examination and impeachment of a witness sufficient to satisfy the sixth amendment. State v. Vitale, 197 Conn. 396, 402, 497 A.2d 956 (1985); State v. Gaynor, 182 Conn. 501, 508, 438 A.2d 749 (1980). " 'The sixth amendment to the [United States] constitution guarantees the right of an accused in a crimi nal prosecution "to confront the witnesses against him." ' " State v. Milum, supra, 608-609. "The primary-interest secured by confrontation is the right to cross-examination; Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); and an important function of cross-examination is the exposure of a witness' motivation in testifying. Greene v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959). Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. State v. Lubesky, 195 Conn. 475, 481-82, 488 A.2d 1239 (1985)." (Internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992). Impeachment of a witness for motive, bias and interest may also be accomplished by the introduction of extrinsic evidence. State v. Shipman, 195 Conn. 160, 163, 486 A.2d 1130 (1985); 1 C. McCormick, supra, § 33, p. 112. The same rule that applies to the right to cross-examine applies with respect to extrinsic evidence to show motive, bias and interest; "proof of the main facts is a matter of right but the extent of the proof of details lies in the court's discretion." State v. Shipman, supra; see also State v. Lewis, 220 Conn. 602, 622, 600 A.2d 1330 (1991). The right of confrontation is preserved if defense counsel is permitted to "expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." Davis v. Alaska, supra, 318. Although it is within the trial court's discretion to determine the extent of cross-examination and the admissibility of evidence, the preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment. See State v. Santiago, supra, 331-32; State v. James, 211 Conn. 555, 573, 560 A.2d 426 (1989). The relevant inquiry, therefore, is whether the trial court's rulings excluding evidence of Tourangeau's drug use, prostitution, psychiatric history and relationships with her husband and Maluk resulted in the exclusion of extrinsic evidence that so significantly bore on the motive, bias and interest of Tourangeau that the exclusion infringed on the defendant's confrontation rights. It bears emphasis that any limitation on the impeachment of a key government witness is subject to the most rigorous appellate review. State v. Gaynor, supra, 509 n.7. The motivation of Tourangeau in testifying was of paramount importance. In assessing her credibility, the jury had to inquire into the circumstances that led to her becoming a state's witness, the reasons for her long delay before coming forward and, most importantly, what role, if any, the reward money played in prompting her statements to the police a short while after the reward had been offered. According to Tourangeau's testimony, her mental and emotional anguish over keeping what she knew to herself, rather than any interest in the reward money, had motivated her to come forward. Also, according to Tourangeau, her drug-abusing lifestyle at the time of the murder, and the effect that giving information to the police would have on that lifestyle, was a powerful influence in her decision not to come forward initially. Tourangeau claimed that, by the time of the third trial, she had left her negative lifestyle behind, and now intended to collect the reward only to assist her and her family in making a new start. Inquiry into the possible financial stake of a witness in the outcome of a case in which the witness is testifying is a proper subject of impeachment. Wheeler v. United States, 351 F.2d 946, 947 (1st Cir. 1965). Although Tourangeau's testimony as to her intent to collect the reward exposed this financial stake to the jury, it was also relevant to her motive for the jury to know the circumstances under which, and for what purpose, she desired to collect the reward. The testimony of Brown and Boyles, and police reports indicating drug abuse and prostitution in 1990, strongly indicated the continuation of the same old lifestyle that supposedly had prompted Tourangeau to keep quiet in the first place and that potentially suggested a more compelling need for money than her new lifestyle commanded. Had this evidence been admitted, the jury might well have inferred that Tourangeau's testimony was motivated by an expensive drug habit, for which she prostituted herself to support, and that the existence of the reward presented her with a means of supporting that habit, thereby alleviating temporarily the necessity to engage in prostitution. Without this additional evidence, Tourangeau's insistent testimony that her old lifestyle had been left behind, after what appeared to be an exhaustive cross-examination, not only deprived the jury of exposure to facts from which it could assess the motivation of the witness in testifying, but also led to the appearance that defense counsel was engaged in a speculative and baseless line of attack on the motivation of an otherwise blameless witness. Davis v. Alaska, supra, 318. Had the jury credited the testimony of Brown and Boyles, not only would the evidence of Tourangeau's continued drug use and prostitution have indicated a continuous need for large sums of money and a lifestyle dominated by the need to survive and to do what is necessary to survive, thus implying a stronger motive for the reward money, but it would also have exposed the jury to a lie that had been repeated a multitude of times by Tourangeau at trial, raising a considerable question as to whether any of her testimony should be credited. We conclude, therefore, that the matters the defendant sought to probe by the defendant's proffered evidence of continued drug abuse and prostitution were clearly relevant to Tourangeau's motive for testifying. Although it is within the trial court's discretion to limit the admission of cumulative evidence, even if that evidence is probative of motive, bias and interest, the trial court's rulings precluded the defendant from offering a constitutionally sufficient minimum of evidence to contradict Tourangeau as to her new lifestyle and hence her need for the reward. This evidence would have made available to the jury significant information to aid it in assessing the bias, motive and interest of Tourangeau for testifying as she did. The trial court improperly excluded this evidence on the ground that Tourangeau's drug use and prostitution were collateral matters, and thus failed to allow the defendant sufficient impeachment of Tourangeau to satisfy the requirements of the constitution. We do not conclude, however, that the exclusion of evidence relating to Tourangeau's depression and emotional problems and to her relationships with both her husband and Maluk, except to the extent that they fur ther reveal continued drug abuse after 1989, also violated the defendant's constitutional rights. Extrinsic evidence is admissible to contradict a witness on a subject matter that is a material issue in the case. The defendant argues that both the evidence of emotional problems and of troubled relationships with Tourangeau's claimed sources of income also were probative of Tourangeau's motive, bias and interest. Therefore, the defendant argues, this evidence was improperly excluded. Although Tourangeau had testified that her emotional anguish over witnessing the attack of the victim and not having done anything to help the victim had motivated her to come forward, the existence of emotional problems that predated the murder and continued thereafter did not divulge an ulterior motive for her testimony, or necessarily contradict Tourangeau's claimed reasons for coming forward. Also, although Tourangeau's financial situation was related to her motive because of the reward, evidence of her contentious relationships with both her husband and Maluk were not sufficiently contrary to her testimony that they had assisted her financially to undermine the trial court's exercise of its broad discretion. We conclude, therefore, that the trial court did not abuse its discretion by excluding this evidence. We next consider whether the trial court's improper exclusion of evidence pertaining to Tourangeau's drug abuse and prostitution requires a new trial. Although the outright denial of a defendant's opportunity to impeach a witness for motive, bias and interest implicates the constitutional protection of the confrontation clause, such a denial is subject to harmless error analysis. United States v. Anderson, 881 F.2d 1128, 1139 (D.C. Cir. 1989); State v. Santiago, supra, 332. A new trial is therefore required only if the exclusion of the proffered evidence is not harmless beyond a reasonable doubt. "Whether such error is harmless in a particular case depends upon a number of factors, such as 'the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.' State v. Milner, [206 Conn. 512, 529, 539 A.2d 80 (1988)]; State v. Oehman, [212 Conn. 325, 332, 562 A.2d 493 (1989)]. Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial. State v. Ortiz, 198 Conn. 220, 225, 502 A.2d 400 (1985)." State v. Santiago, supra, 333. If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless. Id. The importance of Tourangeau's testimony to the state's case against the defendant cannot be underestimated. The state conceded in its closing argument to the jury that it would have to credit Tourangeau's testimony to convict the defendant. See footnote 7. The exclusion of evidence bearing on the motivation of a chief witness for the state, particularly when no other evidence corroborated material aspects of the witness' testimony, is harmful error. See State v. Santiago, supra, 333-34; State v. Corley, 177 Conn. 243, 246-47, 413 A.2d 826 (1979); State v. Annunziato, 174 Conn. 376, 379-80, 387 A.2d 566 (1978). The state has not demonstrated beyond a reasonable doubt that the denial of the opportunity for the defendant to contradict Tourangeau as to her claimed new lifestyle and as to her desire for the reward money was harmless. II Our resolution of the defendant's first claim is dis-positive of this appeal; however, we will address cer tain evidentiary claims of the defendant that may be likely to occur at the new trial. The defendant claims that the trial court abused its discretion by making several evidentiary rulings that resulted in the exclusion of evidence that was probative of the credibility of Tourangeau and in the admission of evidence that was unduly prejudicial to the defendant. This claim of the defendant comprises three separate evidentiary rulings of the trial court. The defendant, in an offer of proof during the defense case, introduced the testimony of Boyles regarding a threat that Tourangeau had made to her shortly before his third trial. Boyles testified that she had been in a truck parked at the McDonald's restaurant on the highway in Milford when her companion began calling for "White Rabbit," Tourangeau's citizens band radio "handle," over the radio. Boyles had seen Tourangeau at the truck stop a few moments earlier. Boyles testified that after her companion said over the radio, "White Rabbit is hopping around from truck to truck," Tourangeau's voice came over the radio saying, "I'll give you hopping around . I have an eyeball on you, I know you, you know me . . . and just like I got rid of Cathy Jones I can get rid of you too." The trial court ruled that this testimony was inadmissible because it did not permit a reasonable inference by the jury that the threat had been directed at Boyles, rather than her companion. On cross-examination of Tourangeau, the defendant sought to elicit that Tourangeau's brother, Ronald King, had been arrested on narcotics charges based on information provided to the police by the victim two months before the victim's murder. In an offer of proof outside the jury's presence, the defendant argued that this evidence was being offered to impeach Tourangeau because it demonstrated a motive for turning attention away from herself. The state objected to the admission of this evidence on the basis that it was evidence of third party guilt without an adequate foundation. The trial court ruled that the defendant could ask Tourangeau whether she believed that she or a family member might be accused of committing the crime and whether that played a role in her going to the police, but that the defendant could not specifically identify Ronald King. When, on cross-examination, Tourangeau denied that she or a family member might have become a suspect in the murder, the defendant again sought to introduce Tourangeau's knowledge of the victim's role in her brother's arrest. The trial court again sustained the state's objection, stating that the testimony would open the door to issues surrounding third party responsibility when there was not an adequate foundation for such evidence, and would inject collateral issues into the trial. The defendant argues that, because the proffered evidence had a direct bearing on the credibility of Tourangeau, the above two rulings violated his constitutional rights to confrontation and to present a defense. The admissibility of evidence is generally a matter of state law and "unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved. . . .''(Internal quotation marks omitted.) State v. Boles, 223 Conn. 535, 545, 613 A.2d 770 (1992). We conclude that the defendant has failed to establish how the exclusion of this evidence deprived him of a constitutional right. There was no evidence that the threat was made to Boyles rather than to her companion, whose remark prompted Tourangeau's response, and no indication that the threat related to her possible testimony at trial. Furthermore, the trial court admitted testimony from other witnesses that Tourangeau had been somewhere else when she said she had witnessed the murder, that she had offered Jones money not to testify, and that she had told one acquaintance that she had not seen the murder but was testifying only for the money. Under these circumstances, we cannot conclude that the absence of this testimony prevented the defendant from exposing to the jury facts from which the jury could appropriately draw inferences relating to the reliability of the state's witness. State v. Lewis, 220 Conn. 602, 622, 600 A.2d 1330 (1991). With respect to the evidence regarding the arrest of Tourangeau's brother, evidence of third party culpability must directly connect the third party to the crime. "It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused." (Citation omitted; internal quotation marks omitted.) State v. Boles, supra, 549; see also State v. Ireland, 218 Conn. 447, 451, 590 A.2d 106 (1991). Unless the direct connection exists, it is within the discretion of the trial court to refuse to admit such evidence. State v. Payne, 219 Conn. 93, 117, 591 A.2d 1246 (1991). The evidence relating to Tourangeau's brother would therefore not have been admissible as evidence of third party culpability. Moreover, the trial court properly concluded that the probative value of the evidence was slight in comparison to the potential it posed for confounding the jury with collateral issues. "The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done." State v. Boles, supra, 549. The defendant had elicited from Tourangeau that she had herself threatened the victim at an earlier time, and was permitted to ask whether she believed that she or any family members were under suspicion with respect to the victim's murder. The addi tional fact that Tourangeau knew her brother had been arrested because of information the victim had provided the police had only marginal relevance outside of its tendency to direct responsibility for the murder toward another suspect. The defendant also challenges the trial court's admission of evidence of the existence of guns at the defendant's residence on the ground that such evidence was unduly prejudicial to him. Early in the state's case-in-chief, the state offered the testimony of police officer Robert Brooks, who had executed a search warrant at Don Phillips Cafe on November 8,1986, based on information that had been supplied by the victim. At that time, the defendant resided in an apartment owned by his father above the bar. Brooks testified that the defendant had been wearing a green army jacket on the night of the search. Prior to trial, the defendant filed a motion in limine to exclude testimony regarding the presence of a collection of guns located in the defendant's apartment at the time of the search. The state indicated that it did not think there would be any need to mention the collection of guns on direct examination. The trial court noted that, with respect to the search, "[i]t's a wide open door on redirect from anything that happens on cross. I'm not covering that bridge at this point . I'll get to that later if it should happen." On cross-examination of Brooks at trial, the defense challenged his ability to recall exactly what the defendant had been wearing on the night of the search. On redirect, Brooks was permitted to testify, over the defendant's objection, that he was able to remember the defendant's clothing because of the association he had made between the army jacket and the presence of an assortment of military rifles and a submachine gun in the apartment that were legally owned by the defendant. The defendant argues that the testimony regarding the presence of guns was unduly prejudicial and outweighed the slight relevance of the evidence and therefore should have been excluded. We will overturn an evidentiary ruling of the trial court only if there is an abuse of discretion and a showing of substantial prejudice or injustice to the defendant. State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990). The defendant argues that the reasoning of State v. Girolamo, 197 Conn. 201, 496 A.2d 948 (1985), and State v. Onofrio, 179 Conn. 23, 425 A.2d 560 (1979), supports his argument of the prejudicial effect of this evidence. Those cases, however, involved a weapons violation and a murder by shooting. In this case, guns played no role in the murder for which the defendant was charged, and the testimony made clear that the guns were legally owned. The testimony at issue was probative of how Brooks could clearly remember what the defendant had been wearing on a particular night more than four years prior to trial. Although we recognize the potential for such evidence to lead the jury to believe that the defendant was a violent individual; State v. Girolamo, supra, 207; we cannot conclude on this record that the trial court abused its discretion by admitting Brooks' testimony regarding the gun collection. The judgment is reversed and the case is remanded for a new trial. In this opinion the other justices concurred. General Statutes § 53a-54a provides in pertinent part: "(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . General Statutes § 53a-8 provides in pertinent part: "(a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender." This theory was supported by the fact that several dimes were found on the bench of the dugout near the victim's body. In street parlance, informing against someone is known as "dropping a dime." When the 6 p.m. news came on, Tourangeau testified that she had been at home with her friend, Cathy Jones, her roommate, Vivian Wiles, and her roommate's friend, Sandy Brown. Tourangeau testified that she had heard a second broadcast later that night at the Tremont Hotel with Jones and two other friends, Jacqueline Boyles and a drug dealer who went by the name of Cowboy. Tourangeau's second statement to the police came about in the following manner. Tourangeau testified that on March 29, 1988, she had been in the Kimberly Avenue neighborhood when she saw the defendant's truck outside of his father's bar. Tourangeau testified that seeing the truck had brought back the memories of the night of the murder that she had been trying to suppress since then. Later that evening, Tourangeau was arrested for prostitution and was taken to the New Haven police station. Officer Paul Welch, who had known Tourangeau since childhood from the neighborhood, was on duty processing incoming prisoners when Tourangeau was brought to the cellblock. Welch testified that, while he was fingerprinting Tourangeau, Tourangeau became very upset and started to cry. She said that she couldn't "live with this any longer," and that she had to talk to someone. Welch then turned Tourangeau over to a detective for questioning. Tourangeau then gave a statement regarding what she had seen the night of the murder to then Detective Francisco Ortiz. The defendant lived in a building owned by his father. His father operated a bar on the ground level and the other floors served as the family's residence. The defendant's father testified also that after he had closed the bar, he had driven the defendant to his girlfriend's house and then home. He testified that after he had dropped the defendant off at home, he had gone to Dunkin Donuts, and that when he returned home the defendant was passed out on the floor. During closing argument, the prosecutor argued: "You have to believe, substantially, you have to believe Janice Tourangeau in order to convict Murray Colton. No question about that. And that's where credibility comes in, which is what you all have to do and I'm sure what you've been doing in your own minds—and now can do collectively—throughout this trial." Tourangeau had also testified at the defendant's first two trials. Ortiz testified that the reward offer had always been for $20,000 and that he had not discussed, and was not aware that anyone else in the police department had discussed, the reward with Tourangeau. In a statement made to the state police, Tourangeau indicated that she thought the reward initially had been $10,000 and that it was later increased to $20,000. At a later point in the cross-examination, however, Tourangeau also testified that she had a greater need for money at the time of the third trial than she had had when she first testified because she was no longer engaging in prostitution and was not otherwise employed. On continued questioning, however, defense counsel elicited that, although Tourangeau had gone to the Connecticut Mental Health Center as an outpatient, she had never told anyone there what she had witnessed in connection with the victim's murder. Defense counsel argued: "I assume based on [Tourangeau's] prior track record that she's going to deny, maybe she'll deny that she even knows the man, but I have to ask the questions. She may deny these statements were made. I have to ask the questions in order to lay the foundation to bring in Michael Brown." Because of the trial court's ruling, defense counsel declined to question Tourangeau on cross-examination regarding her drug use with Brown and engaging in prostitution in 1990. Brown's contact with Tourangeau ceased in late December, 1990, when Brown was imprisoned for an unrelated offense. With respect to how this evidence bore on the motive or bias of Tourangeau, the defendant argued: "It's information we claim the jury should have that as recently as December of 1990 she, contrary to her testimony, was a person who was still involved with narcotics with all the expenses that entailed, was a person who was so in need of money arguably to support that habit, if not to support other things as well, that she was prepared then as before to prostitute her body to get money, and that, contrary to her testimony she is a person who continues to have an incentive to testify in this case falsely in order to collect a reward so she can make $20,000 by sitting on a witness stand talking rather than prostituting to support a drug habit. The jury can infer, it seems to me, based on the recency of these events that she still has that need . . . that she was taking narcotics on this kind of a basis and this kind of a level through December of 1990 is every reason for the jury to at least consider that her motivations are not as pure as she wants them to believe." Defense counsel demonstrated this lack of knowledge on the part of Welch in an offer of proof outside the presence of the jury. The evidence relating to Tourangeau's former husband was also offered to contradict her testimony that her decision to apply for the reward had been partially due to a desire to make up for the embarrassment the trials had caused her former husband. The defendant also offered the medical reports indicating Tourangeau's problems with depression and suicidal tendencies in this offer of proof. The trial court excluded these reports as well for the same reasons. We note that the defendant's claim, as it pertains to his offer of proof on recross-examination that Tourangeau would testify that she had been hospitalized in 1986 for severe depression and suicidal tendencies, was not that extrinsic evidence as to Tourangeau's motivation was admissible. As explained infra, we conclude that this evidence was not evidence of motive, bias and interest, and that it was within the trial court's discretion to determine its admissibility. We will overturn the trial court's ruling only on a finding of abuse of discretion. State v. Boles, 223 Conn. 535, 549, 613 A.2d 770 (1992). On this record, we cannot conclude that the trial court abused its discretion by determining that this testimony was irrelevant and outside the scope of redirect examination. Indeed, Tourangeau liad testified on cross-examination that the same day she had given a statement to the police in March, 1988, regarding the murder, she had been arrested for prostitution. Rather than give her name, Tourangeau testified that she had identified herself to the police as Cathy Jones, but that she had later been caught in the lie because one of the officers at the station had recognized her. Tourangeau had also testified as to what it was like to be out looking for drugs, which she referred to as a "mission." She testified: "A mission is when you're just out there, when you're eager to get some drugs, you're pursuing what you want, you know, it's like being blind to all other things. You're just, that's it." She further commented on direct examination that, at the time of the murder, her principal interests were "[sjurviving, the street, you know, drugs." We do not reach the following issues raised by the defendant: (1) whether the trial court improperly permitted an unrepresentative viewing of the crime scene; (2) whether the trial court improperly denied motions for disclosure of exculpatory information and failed to sanction the state for untimely disclosure of information; (3) whether the trial court failed to follow proper procedures in denying the defendant's request for access to medical records of the state's chief witness; (4) whether the trial court improperly barred the defendant from calling a witness on surrebuttal; (5) whether the trial court's jury instruction on consciousness of guilt and reasonable doubt diluted the state's burden of proof; and (6) whether the trial court's instruction on consciousness of guilt had a sufficient basis in the evidence. The defendant also challenges two rulings of the trial court that, he argues, curtailed his ability to develop a theme of police bias against the defendant as of 1988. The defendant contends that law enforcement officials, after failing to solve the murder for more than one year, developed a special interest in building a case against the defendant after Tourangeau gave her statement to the police. On appeal, the defendant claims that he was prohibited from asking two questions of the detective who had taken Tourangeau's statement that would have developed this theme. Before the trial court, however, the defendant did not articulate this theme of police bias, but instead claimed that the evidence might aid the jury in assessing Tourangeau's credibility. Because the basis of the defendant's claim differs from the ground of his argument at trial, we decline to review it. "[Rjeview of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection. . . . The reason for this rule is clear: it is to alert the trial court to an error while there is time to correct it . . . and to give the opposing party an opportunity to argue against the objection at trial. To permit a party to raise a different ground on appeal than was raised during trial would amount to 'trial by ambuscade,' unfair both to the trial court and to the opposing party." (Citations omitted.) State v. Sinclair, 197 Conn. 574, 579, 500 A.2d 539 (1985). Boyles testified for the defense that she had been with Tourangeau and Cathy Jones on the night of the murder. She testified that the three women had driven around in Jones' car looking for heroin and then injecting themselves. Boyles further testified that she and Jones later dropped Tourangeau off at home at approximately 2 a.m., contrary to Tourangeau's testimony that Jones had dropped her off at Kimberly Avenue before 11 p.m. Both Boyles and Jones had testified for the defense at the defendant's first trial as to this version of events on the night of the murder. Jones, however, never appeared to testify at the second trial. This testimony corroborated the testimony of Anthony Harris, who testified that he had seen the defendant walking with the victim on the night of the murder wearing such a jacket.

Foti, J. The defendant appeals from the judgment of conviction, rendered after a jury trial, of arson in the second degree in violation of General Statutes § 53a-112 (a), and insurance fraud in violation of General Statutes § 53a-215 (a) (l). On appeal, the defendant raises three claims. He contends that the trial court improperly (1) permitted unreliable identification testimony, (2) instructed the jury on the defendant's failure to call a witness, and (3) found sufficient evidence to convict the defendant of insurance fraud and, therefore, denied his motion for a new trial. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On April 20, 1989, a fire destroyed the house of Diana Lago at 48 East Street in Wolcott. She had been awarded sole possession of the house after her divorce from the defendant. The defendant resented her pos session of the house and had threatened her life, telling her she would never enjoy the house and that she was not going to keep it. After the fire, the defendant indicated that if she rebuilt the house with insurance proceeds, it would "go up again," with her in it. In February, 1989, Diana Lago had changed the locks of the house and found that on March 8 the defendant had entered the house and that all the locks had been removed. The following day, Diana Lago discovered that new locks had been installed on the doors. She called the police. Upon their arrival, she entered the house to find all the lights on and the thermostats turned all the way up. The defendant called Diana Lago later that evening and told her that he had left a key on a table. The key fit only the door leading to the basement exit. Subsequently, only she and the defendant had keys to the house. A few days prior to the fire, she discovered that someone had dismantled the fire alarm system in the house. On the night of the fire, Diana Lago left the house at approximately 6:05 p.m. Her friend picked her up to go bowling, as they had done every Thursday evening for ten years. She locked the house with her dog inside. Soon after leaving the house, Diana Lago and her friend observed the defendant driving his Ford van in the direction of the house on a road that intersects with East Street. At approximately 6:30 p.m., an acquaintance of the defendant observed him driving his van away from East Street. At the time, the defendant was wearing a red plaid jacket. Between 6:20 and 6:30 p.m., a neighbor saw Diana Lago's dog outside, but did not observe anything unusual or any indication of smoke or fire. At approximately 7:45 p.m., Robert Trerice, a lieutenant of the Waterbury fire department, drove by the Lago house. He observed heavy smoke and flames shooting out of the back of the house. He watched a man step out of the front door and appear to try to lock it. The man was approximately 5 feet 8 inches tall with a husky build, and dark hair which was gray or white around the ears. He was approximately forty to fifty years old. The man was wearing blue or green industrial type work clothes. Trerice also observed two cars in the driveway, one of which was medium sized and similar to a Datsun or Toyota. Trerice proceeded to the firehouse and returned shortly thereafter with the fire department. He did not see the man at the scene upon his return. At approximately the same time that Trerice passed the house, a neighbor witnessed flames and smoke at the Lago house from her backyard. She also heard screeching tires and observed a small brown car pull out of the Lago driveway and proceed north toward Wolcott center. She described the car as similar to a Toyota Corolla or small Mustang, with dark windows seemingly covered in dark plastic. The vehicle did not appear to have any chrome or bumpers. The screeching tires reminded her of the way that the defendant's son, Ralph Lago, Jr., drove when he lived at the house. Shortly thereafter, Larry Thomas, a fireman, was driving south on County Road. He observed a small orange-brown Toyota type car proceed at a high rate of speed through the stop sign at County Road and East Street. A few minutes later he saw a large column of black smoke coming from the area of the Lago residence. He later identified a car sitting in the driveway of the defendant's son's house as the one he had seen go through the intersection. When the firefighters arrived at the Lago house, they found all of the doors locked. Although the fire had not been burning long, the house was fully in flames. Firefighters were able to detect the presence of an accelerant. On the following day, it was determined that the fire had been ignited intentionally and that an accelerant had been used. The living room, which had sustained the most damage, smelled of gasoline. Tests indicated the presence of gasoline and number two fuel oil or diesel fuel. Typically, gasoline is combined with fuel oil and used as an accelerant because gasoline is easier to ignite, and number two fuel oil causes the accelerant to burn longer than if gasoline alone is used. The defendant's oil truck, which was parked in the Lago driveway, contained number two fuel oil. According to Christine Bosco and John Korab, attendants at two different gas stations in Wolcott, a man fitting the defendant's description purchased gasoline in a container from them on the day of the fire. I The defendant first claims that the trial court improperly permitted the introduction of unreliable testimony that was the result of unnecessarily suggestive identification procedures. The following additional facts are pertinent to our analysis of this claim. A TESTIMONY OP ROBERT TRERICE At trial, Trerice described the height, build and clothing of the man he had observed at the scene of the fire. In particular, Trerice described the man's hair. At the time he observed the man, it was daylight and Trerice got a good look at the individual's back and side. He did not view the man's face straight on. Trerice observed the man from approximately 120 feet. As a result of the defendant's motion to suppress identification, the court held a hearing in the absence of the jury at which the following facts came to light. The defendant had been videotaped without his knowledge at the police station the day after the fire while speaking to Lieutenant Joseph Forte. Later that day, Trerice viewed the videotape and indicated that the man in the tape was very similar to the man he had seen at the house and that the hair of each was identical. He could not, however, make a positive identification. Trerice offered to testify before the jury as to the similarity between the man he had seen in the videotape and the man he had seen at the scene. The court did not treat this proffered testimony as an identification but distinguished it as "resemblance" testimony. Although the court found that the police had used an unnecessarily suggestive procedure in showing Trerice the videotape, the court admitted Trerice's testimony on the basis that Trerice was not making an identification nor was his testimony leading to an identification of the defendant. The court explicitly prohibited Trerice from making any comparison before the jury between the defendant and what he had seen. The court refused to admit the videotape itself into evidence on the basis that it was unnecessarily suggestive. In the jury's presence, Trerice testified as to the similarities between the man he had seen at the house and the man he had viewed on the videotape, specifically as to hair, age and build. The defendant took an exception. Later in the trial, Forte identified the person on the videotape as the defendant. He indicated that at the time of the taping, the defendant wore blue work pants, dark shoes, a red plaid wool or flannel hip length jacket and a red shirt. We agree that Trerice's testimony was not identification testimony. Whether resemblance testimony is the same as identification testimony in each case in which there has been an improper identification procedure is an issue of first impression in our state. We note that there is disagreement among the federal courts that have had occasion to pass on this issue. Compare United States v. Brooks, 449 F.2d 1077 (D.C. Cir. 1971) with Patler v. Slayton, 503 F.2d 472 (4th Cir. 1974). In United States v. Brooks, the District of Columbia Circuit Court of Appeals stated that "[wjhile 'resemblance' testimony projects some uncertainty on the part of the witness, it is part of the evidence which the jury may consider to constitute a basis for a guilty verdict, and a defendant's rights would be violated if such testimony had been obtained by the Government e.g., by an arrantly suggestive confrontation." United States v. Brooks, supra, 1083. We find the view articulated by the Fourth Circuit in Patler v. Slayton, supra, to be more compelling, however. In that case the Fourth Circuit held that although the line between resemblance and identification testimony may be thin, it is a "line worth drawing." Id., 476. This view has also been adopted by the Appellate Division of the New York Supreme Court. See People v. Moss, 172 App. Div. 2d 856, 569 N.Y.S.2d 457, appeal granted, 78 N.Y.2d 1079, 583 N.E.2d 954, 577 N.Y.S.2d 242 (1991); People v. Sanders, 108 App. Div. 2d 316, 489 N.Y.S.2d 348, aff'd, 66 N.Y.2d 906, 489 N.E.2d 743, 498 N.Y.S.2d 774 (1985). While we agree with the trial court that Trerice's resemblance testimony was not identification testimony because it neither identified nor led to an identification of the defendant, this determination does not conclude our review. In this case, the police display of the videotape to Trerice was unnecessarily suggestive. See State v. Findlay, 198 Conn. 328, 338, 502 A.2d 921, cert. denied, 476 U.S. 1159,106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986). "Although the failure of a witness to make a positive, in-court identification cannot be used by the state to insulate its improper identification procedures from scrutiny, it is entirely possible . . . for a skilled trial judge to separate tainted matter from what the witness actually observed at the scene of the crime and thus avoid an unnecessarily blunt application of the exclusionary rule . . . ." Patler v. Slayton, supra. Here, the trial court limited Trerice's testimony to similarities between the man in the videotape and the man Trerice saw at the house. The court prohibited Trerice from making a comparison with the defendant to ensure that the thin line between resemblance and identification testimony was not crossed. Because Trerice's resemblance testimony was predicated on an impermissibly suggestive procedure, we must establish a standard by which to determine its admissibility. We note that the standard we adopt today need not be employed in all cases involving resemblance testimony, but merely in those cases in which an improper identification procedure has occurred. We choose to adopt a standard identical to that applied to identification testimony that is the product of improper police procedure, the test being whether the testimony was nevertheless reliable based on an examination of the totality of the circumstances. See State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980). An in-court identification must be excluded as violative of the defendant's due process rights only if it is the product of an unconstitutional pretrial identification procedure. State v. Tatum, 219 Conn. 721, 726-27, 595 A.2d 322 (1991). "In determining whether identification procedures violate a defendant's due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the 'totality of the circumstances.' " State v. Theriault, supra; State v. Howard, 221 Conn. 447, 453, 604 A.2d 1294 (1992). "To determine whether an identification resulting from an unduly suggestive procedure is nevertheless reliable, [we] must weigh the corrupting effect of the suggestive procedure in light of the following factors: 'the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.' " State v. Howard, supra, quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). We recognize that "the Manson reliability inquiry contemplates a series of factbound determinations, which a trial court is far better equipped than [an appellate court] to make. . . ." State v. Howard, supra, 454. Because the trial court in this case did not make such findings, the record must be sufficient for us to review that prong of the required constitutional test, See State v. Tatum, supra, 727 n.11 (the defendant failed to file a motion to suppress regarding a challenged identification procedure); Williams v. Bronson, 21 Conn. App. 260, 265-66, 573 A.2d 330 (1989) (a habeas corpus proceeding wherein no challenge to the identification was made). We find that the record in this case is sufficient for us to determine whether Trerice's resemblance testimony was reliable. Although we agree with the trial court's conclusion that Trerice's testimony was not identification testimony, we also conclude that the trial court properly admitted his testimony, as it was reliable. Even though the procedure employed was unnecessarily suggestive, the resemblance testimony satisfies the five factor reliability test enunciated in Manson v. Brathwaite, supra. Turning to the facts of this case, we first note that Trerice had a good opportunity to view the man at the scene of the fire. Trerice testified that it was "very light" at the time he made his observations. He testified that he viewed the man from the side for approximately four or five seconds as the man stepped out of the front door and that he got a longer look from the back. Although Trerice viewed the man from a distance of 120 feet, he testified that he has good eyesight and that he got a "good look" at the back of the man through his open car window. Our Supreme Court has stated that "a good hard look will pass muster even if it occurs during a fleeting glance." State v. Ledbetter, 185 Conn. 607, 615, 441 A.2d 595 (1981). Furthermore, he testified that he was familiar with the area and that he travels on East Street approximately once a week and sometimes more. Trerice's degree of attention was high during his observation given the fact that there were heavy smoke and flames coming from the back of the house. His degree of attention was further heightened given his position as a lieutenant firefighter in a nearby town. Furthermore, he was struck by the sight of a person exiting a burning building in what he described as a calm, deliberate manner, appearing to take the time to lock the front door. Trerice was able to provide the police with a description of the length and distinctive color of the man's hair, as well as an approximation of his height, build and age. Trerice also provided the police with a description of the man's clothing. Although Trerice could not positively identify the defendant, his uncertainty in and of itself does not render the testimony unreliable. "[ Admissibility of identification testimony requires a judgment about reliability that is derived from a matrix of factors in which the relative certainty of the identification is only one component." State v. Perez, 198 Conn. 68, 76, 502 A.2d 368 (1985); Manson v. Brathwaite, supra, 114. Absent a very substantial likelihood of irreparable misidentification, " '[w]e are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.' " State v. Ramsundar, 204 Conn. 4, 13, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987), quoting Manson v. Brathwaite, supra, 116. Any uncertainty on Trerice's part goes toward the weight of the evidence rather than the admissibility. State v. Mayette, 204 Conn. 571, 584, 529 A.2d 673 (1987). "The weaknesses of identifications can be explored on cross-examination and during counsel's final arguments to the jury." State v. Kemp, 199 Conn. 473, 478, 507 A.2d 1387 (1986). It was a matter for the jury to determine, after cross-examination, what weight to accord Trerice's testimony. Finally, Trerice gave his description of the man to the police only one day after he had made his observation at the scene. This factor strongly supports the reliability of the resemblance testimony. See State v. Cubano, 203 Conn. 81, 96, 523 A.2d 495 (1987) (only nine days between the crime and the identification); State v. Arroyo, 13 Conn. App. 687, 690, 539 A.2d 581, cert. denied, 208 A.2d 805, 545 A.2d 1103 (1988) (only eighteen days between the crime and the identification). Trerice's testimony as to what he saw at the scene was, therefore, not tainted by the unnecessarily suggestive display of the videotape. We conclude that despite any impermissibly suggestive identification procedure used by the police, Trerice's resemblance testimony was nevertheless reliable. Thus, the court properly admit ted Treriee's resemblance testimony as circumstantial evidence, leaving the jury to determine what weight it should be accorded. B TESTIMONY OF CHRISTINE BOSCO We next examine the admissibility of the testimony of Christine Bosco, an attendant at Norm's A-l Citgo station in Wolcott. The day after the fire, the police canvassed area gasoline station attendants about people who purchased gas in containers on the previous day. Bosco testified in the presence of the jury that she transacted three such sales. Specifically, she sold gas pumped into a container to an older man who was driving a van or small truck. She described the man whom she saw face-to-face as being of medium height, a little bit stocky and with salt and pepper hair, wearing a red plaid "kind of shirt-jacket." She testified that the man, who was about forty-five or fifty years old, pumped gasoline into a five gallon container and paid her. This transaction occurred sometime between 5 and 7 p.m. The next day, Officer Brian Morrone of the Wolcott police department showed Bosco a photograph of five people including the defendant. Bosco pointed out the defendant and indicated that he resembled the man who had purchased gas in a container from her the previous day. She testified that the build, size, age, and especially the hair of the man in the photograph resembled the person who had purchased the gas. She testified that there was a "general resemblance" between the two. She characterized the resemblance as "very close." She also testified that she viewed a videotape at the police station and that the man in the tape "very much resembled" the man who had purchased gas the previous day and also resembled the person in the photograph. She testified that she was absolutely certain that the man's jacket in the tape was the same as that worn by the customer who had purchased the gasoline. She then pointed out the defendant, who was seated at counsel table, as a man who "closely resembles" the man who purchased gas from her on April 20. The trial court treated Bosco's testimony as identification testimony. Although the court found that the procedures used by the police were unnecessarily suggestive, the court held that her identification, to the extent that she could make one, was nonetheless reliable. As discussed earlier, when a witness has made a pretrial identification, the analysis of whether the witness should be permitted to identify the defendant at trial requires a two step inquiry. State v. Howard, supra, 453. The first question is whether the pretrial identification procedures were unduly suggestive of the suspect's guilt. State v. Milner, 206 Conn. 512, 534, 539 A.2d 80 (1988). If so, the second inquiry is whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. Id. " 'Reliability is the linchpin in determining the admissibility of identification evidence.' " State v. Chapman, 16 Conn. App. 38, 43, 546 A.2d 929, cert. denied, 209 Conn. 827, 552 A.2d 433 (1988), quoting Manson v. Brathwaite, supra, 114. Although Bosco did not witness the actual crime, the five factor test enunciated in Manson can still be applied to the facts of this case to determine reliability. State v. Ramsundar, supra, 11. "We must examine the circumstances that did exist and determine on the whole whether any suggestiveness in the identification procedure created a very substantial risk of misidentification." Id. Because the analysis of reliability under Manson v. Brathwaite, supra, rests on a series of factual determinations that are normally within the province of the trial court, we will not dismiss the factual findings of the trial court unless there is "clear and manifest error." State v. Howard, supra, 454. After careful examination of the record with an eye toward the constitutional rights of the accused; see id; we conclude that the facts found by the trial court are adequately supported by the evidence. Although the police in this case used an impermissibly suggestive identification procedure, we agree with the trial court that, under the totality of the circumstances, Bosco's identification of the defendant was nevertheless reliable. Bosco had a very good opportunity to view the customer who purchased gas in a container from her and who she testified resembled the defendant. The customer came into the store sometime between 5 and 7 p.m. while it was daylight. Bosco testified that she generally paid particular attention to customers who pumped gas into containers because those customers do not pay for their gas until after it has been pumped. Bosco was able to recall the man's height, build, clothing and especially his hair. Bosco emphasized that she was "absolutely certain" that the customer was wearing the same jacket that the defendant wore in the videotape she viewed. In addition, only one day had passed between her encounter with the customer and her description of the man to the police. The fact that Bosco was not absolutely certain that the defendant was the man she saw in the store did not render her testimony unreliable. Again, any uncertainty on her part goes to the weight of the evidence rather than its admissibility and thus was a matter for the jury to decide. State v. Mayette, supra. In this case, the trial court could have reasonably found that any suggestiveness in the identification procedure did not result in a substantial likelihood of misidentification and that Bosco's identification of the defendant was sufficiently reliable to be submitted to the jury. c TESTIMONY OF JOHN KORAB We next turn to the admissibility of the testimony of John Korab, an attendant at the Getty Mart in Wolcott. He testified that a man bought gas in a container from him on April 20,1989. The day after the fire, the police showed Korab the same photograph shown to Bosco. Korab pointed out the defendant and said, "That's the man, unless he's got a twin." At trial, Korab testified that the customer came in between 4 and 5 p.m., paid Korab for the gas in advance, went to the pump farthest from the building and pumped $1 or $2 worth of gas into a plastic container that did not say "gasoline" on it. Korab testified that he was uneasy because an attendant is not supposed to let a customer pump gas into a container that does not say "gasoline" on it. Korab also viewed the tape shown to Bosco and Trerice. He testified that the man in the tape was the same man who had bought gas in a plastic container from him. The man in the tape had the same face and hair as the customer, but his body appeared bigger than the customer's. Korab testified that the customer was between 5 feet 6 inches and 5 feet 8 inches tall, with a medium build and in his late thirties and was wearing "something like a gray tweed jacket." The court treated Korab's testimony as identification testimony. Although the court found that the identification procedures used by the police were unnecessarily suggestive, it found that the testimony was nonetheless reliable under the totality of the circumstances test. Although Korab's out-of-court identification did not identify the defendant outright, he told the police, "That's the man, unless he's got a twin." This testimony is clearly identification testimony. When analyzed under the totality of the circumstances test as enunciated in Manson v. Brathwaite, supra, Korab's testimony is reliable. Korab had a good opportunity to view the face of the customer alleged to be the defendant. The customer came into his store between 4 and 5 p.m. while it was daylight, and Korab saw him face to face. Korab's degree of attention was high due to his uneasiness because the customer pumped gas into an improper container. Only one day passed between Korab's transaction with the customer and his description of him to the police. Any discrepancy in Korab's testimony between the size and age of the customer and the defendant's size and age goes toward the weight of the evidence rather than its admissibility. State v. Williamson, 206 Conn. 685, 694, 539 A.2d 561 (1988). Thus, we conclude that the trial court reasonably could have found that Korab's testimony was reliable on the basis of the totality of the circumstances, despite any impermissibly suggestive identification procedure that occurred. II The defendant next claims that the trial court improperly instructed the jury that an adverse inference could be drawn against the defendant from his failure to call a certain witness. Although the defendant was convicted as a principal to the crime of arson in the second degree, he had also been charged with arson in the first degree and being an accessory to arson in both the first and second degrees. The court permitted the accessory charges to go to the jury because evidence had been presented that an automobile matching one owned by the defendant's son had been observed at or near the fire and that this automobile had been driven away from the scene in a manner similar to the way the defendant's son drove. The defendant's son, Ralph Lago, Jr., testifying for the defense, indicated that he worked in Farmington until approximately 5 p.m. on the day of the fire. He then went to a package store and a softball game. Shortly after 7 p.m., he went to the Southington home of a coworker, Greg Prislow, arriving at approximately 7:45 p.m. Prislow's house is only a short distance from East Street in Wolcott. Ralph Lago, Jr., left Prislow's at 10 or 10:30 p.m. and arrived at his house at 11 p.m. During closing arguments, the state asserted that the evidence suggested that the defendant and his son were at the Lago house at the time the fire was set. The state pointed out that despite evidence implicating Ralph Lago, Jr., in the crime, Prislow was never called to support his testimony that he was at Prislow's house at the time of the fire. The state filed a request to charge the jury with a missing witness instruction, a Secondino charge. The defendant did not object, and, therefore, the state argues that this claim is not properly preserved. State v. Anderson, 212 Conn. 31, 561 A.2d 897 (1989). We note that the court file indicates that the state's request was granted on November 13 and that the charge was given on November 15. There was no argument or advance ruling noted in open court. An advance ruling was filed by the court prior to the commencement of oral arguments. Oral arguments began on November 13. When the court gave the requested Secondino instruction on November 15, the defendant noted his exception. We therefore conclude that this case is unlike State v. Anderson, supra, where the trial court expressed its intent to grant the state's motion in response to a request made prior to the commencement of oral argument and the defendant did not object. Here, the court granted the state's request, and the defendant was aware of that action prior to oral arguments and the defendant failed to object. Our Supreme Court has indicated that "[a]lthough the defendant objected to the court's instructions during the state's final argument and after the Secondino charge was given to the jury, objection to such an instruction should have been made by the defendant when he learned that the state had requested it and prior to its being brought up in arguments. " (Emphasis added.) State v. Anderson, supra, 43. As in Anderson, the state here followed the proper procedure in requesting a Secondino charge. The state intended to argue to the jury that an unfavorable inference could be drawn from the absence of a witness, and, therefore, obtained an advance ruling from the court by its request to charge, a copy of which was given to the defendant. While the state did not, as in Anderson, orally ask the court for a ruling on the requested Secondino charge, such was not required because the court granted that request prior to oral arguments. It would serve no purpose for the state to request something that had already been granted. "[I]t was incumbent on the defendant to interpose a proper objection before the issue of the missing [witness] was brought to the attention of the jury." (Emphasis added.) State v. Anderson, supra. The defendant's claim was not properly preserved. "A party who fails to make a timely objection to the giving of a Secondino charge will be deemed to have waived the issue for appeal. The giving of a Secondino charge is purely an evidentiary issue and is not a matter of constitutional dimensions." Id., 41-42. Even if we were to reach the merits of this question, we are not persuaded that the trial court committed plain error in giving a Secondino charge, and even if error was committed, it was harmless because the jury convicted the defendant as a principal rather than an accessory. Any adverse inference from Prislow's absence played a minimal role at most in the jury's deliberations. The defendant has failed to meet his burden of demonstrating that the charge was likely to have affected the verdict. State v. Shashaty, 205 Conn. 39, 44, 529 A.2d 1308 (1987), cert. denied, 484 U.S. 1027, 108 S. Ct. 753, 98 L. Ed. 2d 766 (1988). Ill Finally, the defendant claims that the evidence produced by the state was insufficient to sustain a conviction for insurance fraud in violation of General Statutes § 53a-215. Specifically, the defendant claims that the state failed to prove that (1) there was a claim for payment within the meaning of the statute, and (2) the Lladro figurines, which the defendant alleges were destroyed in the fire, had in fact been taken from the house. The jury reasonably could have found the following facts relevant to this claim. Both the defendant and Diana Lago submitted claims to the Aetna Insurance Company for losses incurred in the fire. Gloria Wood-well, a senior claims adjustor for the Aetna Insurance Company, examined the remains of the house a number of times after the fire to determine the overall damage and the contents of the home, as well as to discover any salvageable items. She went through the rubble of the entire house, measured each room starting with the basement, and looked in every section. Although she discovered stoneware in the remnants of the upstairs back bedroom, she saw no traces of the Lladro figurines at the scene. She was aware that Lladro figurines are made of porcelain and have a higher melting point than stoneware. During her inspections, Woodwell knew of the defendant's claim that Lladro figurines had been lost in the fire. The estimated value of the figurines ranged from $100 to $15,000. Aetna's claims procedures allow anyone filing a claim to submit a written list of what was lost on forms provided by the company. As part of this procedure Aetna requires that claims be accompanied by receipts, canceled checks, or other documentation to prove the amount of the loss. On June 14, 1989, the defendant submitted a signed contents claim worksheet, as required by Aetna, which contained a list of Lladro figurines. This claim sheet is kept by Aetna as a permanent record of a claim made on the policy. The defendant also provided Aetna with over eighty photographs of items he owned that he claimed were destroyed in the fire, including the Lladro figurines. A sworn statement of the defendant's proof of loss was also submitted. Additionally, attached to the seventeen pages of the contents worksheets was an oath page that stated that they were true and accurate to the best of the defendant's knowledge. There were many conversations between the defendant and Woodwell wherein the defendant expressed his interest in settling his claim. The defendant's Lladro collection had been kept in his room at 48 East Street prior to his moving out. Brian Haylette, a former boyfriend of the defendant's daughter, testified that sometime in late 1988, he assisted the defendant and the defendant's daughter, Therese Collela, in removing certain items from the defendant's room at the house at 48 East Street. He testified that, among other things, they moved Lladro figurines to the defendant's parents' house in Waterbury. Collela testified, however, that the figurines had not been moved from the house but had been stored in the attic. Diana Lago testified that as of March 22, 1989, all items belonging to the defendant had been removed from his room. The room was bare, without light fixtures, telephone jacks or closet doors. Collela later told her mother that she had removed the figurines, and the defendant himself admitted removing some figurines from the house. The photographs of the Lladro figurines submitted to Aetna by the defendant were not taken at 48 East Street. They were taken sometime between December 1, 1988, and the day of the fire, and included figurines that had never been at 48 East Street, and belonged to Collela and the defendant's mother. When reviewing a sufficiency of the evidence claim, we first examine the evidence in the light most favorable to upholding the jury's verdict. State v. Avis, 209 Conn. 290, 309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989); State v. Rice, 25 Conn. App. 646, 650, 595 A.2d 947 (1991). We then determine on the basis of the facts established and the inferences that reasonably could be drawn from those facts whether the jury reasonably could have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Hopes, 26 Conn. App. 367, 376, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992). We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989). The defendant first alleges that there was no evidence of a demand or claim for any monetary amount and, therefore, the requirements of General Statutes § 53a-215 were not met. This claim is without merit. Neither the statute nor Aetna requires that a claim be filed for a specified monetary amount. Aetna merely seeks information known to the claimant relative to the original cost, the cost to replace, clean or repair the items. The term "claim for payment or other benefit" as contained in § 53a-215 is followed by the words "pursuant to such policy of insurance." Thus, the claim for payment is dependent on the procedures of the insurer to establish a payment for a claimed loss. A claimant who knowingly supplies false statements as part of or in support of a claim for payment violates this statute and is guilty of insurance fraud, even absent an actual demand or claim for a specific monetary amount. The defendant also claims that the evidence submitted to the jury was insufficient to sustain his conviction because it failed to establish that the Lladro figurines had been taken from the house before the fire. While there was contradictory evidence introduced at trial concerning the location and alleged removal of the figurines, it is within the province of the jury to determine credibility and assess weight to be given the evidence submitted. State v. Reyes, 19 Conn. App. 179, 191, 562 A.2d 27 (1989). " '[When the conclusion is one that is dependent on the resolution of conflicting testimony, it should ordinarily be left to the jury for its judgment. State v. Torello, 100 Conn. 637, 647-48, 124 A. 375 (1924).' " State v. Bewry, 26 Conn. App. 242, 246, 600 A.2d 787 (1991), cert. denied, 221 Conn. 911, 602 A.2d 11 (1992). The evaluation of testimony is the sole province of the trier of fact. State v. Johnson, 26 Conn. App. 553, 557, 603 A.2d 406 (1992). The verdict indicates that the jury chose to credit the testimony of Woodwell, Haylette, and Diana Lago, and reject the contradictory testimony of Collela. The defendant asserts that Woodwell's testimony that she found no evidence of porcelain during her survey deserves little weight because she "did not see an attic or ceiling above the second floor" and the attic is where the defendant claims the figurines were stored. Again, the jury had before it all of the evidence and chose not to believe that the Lladro figurines were in the attic and had been destroyed. The record shows that Woodwell had examined the entire upstairs, consisting of two bedrooms and storage areas, and a bathroom. The record further indicates that as a result of the fire she could see directly to the roof from the second floor, and that there was no attic separate and distinct from this area. Wliat once was an attic had been converted into two bedrooms, the bathroom and walkway or storage area off the stairs. Further, as a result of the fire, there was no ceiling between the second floor and the roof because the ceiling had burned and fallen. When Woodwell stood on the second floor of the Lago residence, she looked up directly at the roof. Thus, the defendant's claim that Woodwell never went into the attic and, therefore, may have missed the remnants of the Lladro figurines, is without merit. After a review of the record, we conclude that there was legally sufficient evidence presented at trial for the jury to find the defendant guilty of insurance fraud. The judgment is affirmed. In this opinion Lavery, J., concurred. The jury found that the defendant was the actual perpetrator of the arson; the defendant was found not guilty of the crime of arson in the first degree in violation of General Statutes § 53a-lll (a). The trial court's recognition of the thin line between resemblance and identification testimony is evidenced by its distinction between the testimony of Trerice and the testimony of Christine Bosco and John Korab, which was treated as identification testimony. " 'The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party's cause.' " Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960).