Opinion
File No. 129122
Our courts follow a liberal policy in permitting amendments to pleadings where the matter is within the discretion of the court. The motion of the defendants to amend the original special defense after a new trial was ordered by the Supreme Court in this action for the determination of compensation for the taking of property should be granted.
Memorandum filed June 1, 1966
Memorandum on defendants' motion for permission to amend special defense. Motion granted.
Harold M. Mulvey, attorney general, and Frederick D. Neusner, assistant attorney general, for the state.
Thomas P. Byrne, of Hartford, for the defendants.
This is a petition in the name of the state by the aeronautics commission for the determination of compensation for the taking of property now owned by the substituted defendants for the expansion of an airport. The special defense of the original defendant, the predecessor in title, alleged that the aeronautics commission's decision as to the necessity for the taking of the property "is unreasonable, was made in bad faith, and is an abuse of the power conferred upon it." After a trial of the cause, the court determined the taking to be reasonable and necessary. Upon appeal, however, the Supreme Court found error and ordered a new trial. State v. Simmons, 153 Conn. 351.
The defendants now seek to amend the original special defense by adding the allegations that the plaintiff has not acted in accordance with the provisions of § 15-79 of the General Statutes, and that the plaintiff has no authority under § 15-79 to take the defendants' property because the approval of the town where the land is located for such taking has not been legally obtained.
Crane v. Eastern Transportation Line, 50 Conn. 341, 344, cited by the plaintiff in support of the proposition that the court is without power to permit an amendment after a remand for a new trial, is inapposite. The court is of the opinion that the granting of permission to amend, here in issue, is within the legal discretion of the court. In the exercise of that discretion, our courts have followed a liberal policy in permitting amendments. No reason appears why that policy should not be followed in respect to the instant motion. see Smith v. New Haven, 144 Conn. 126, 132.