Opinion
Argued June 6th, 1933
Decided June 27th, 1933.
ACTION claiming an adjudication as to whether the plaintiff has the right as trustee to make a payment to the United States in settlement of a tax assessment, brought to the Superior Court in Fairfield County and reserved by the court, Ells, J., for the advice of this court.
Walter N. Maguire, for the plaintiff.
Walter M. Anderson, for the defendant Edythe G. Brixey.
Jonathan Grout, for the defendant Austin D. Brixey. Luke Vincent Lockwood, filed a brief for the defendant Austin D. Brixey, Jr.
This case comes before us by reservation. The question presented is whether the plaintiff, trustee of a fund under a written agreement, has the right to pay certain taxes due the United States Government. When the case came on for hearing before us, it developed that counsel for all parties were in agreement that the trustee should pay the taxes. Under such circumstances a judgment of the Superior Court would, if supporting this contention, be sufficient for all purposes to be served by a judicial determination of the question. On the other hand, the agreement of all counsel that the court should uphold the authority of the trustee to make the payment precludes the presentation to us of opposing contentions, which is one of the great assurances of the establishment of a sound precedent. We are under no obligation to entertain a reservation; ordinarily whether or not we will do so is determined before the assignment of the case for hearing; Practice Book, p. 324, § 73; but where, as in this case, reason for not entertaining it develops upon the hearing we may then decline to consider it. In the present case the question at issue should be decided by the trial court, subject, of course, to a right of appeal to this court.