The appeal by the town of Waterford from a conditional judgment of the Superior Court concerning the town’s duty to repair a portion of Pilgrim Boad was continued on our docket awaiting the final determination of the validity of the discontinuance of the road. Waterford v. Cone, 148 Conn. 113, 167 A.2d 854. A final judgment by the Court of Common Pleas in the case of Cone v. Dar*703row, New London County, No. 15480, from which no appeal has been taken, has now determined that the discontinuance of the road was valid.1 Had the Superior Court in the present case awaited that determination before rendering judgment, as it should have, the correct judgment would have been one setting aside the order to repair. Such a judgment should now be directed.

There is error, the judgment is set aside and the case is remanded with direction to render judgment setting aside the order to repair.

No costs will be taxed in this court in favor of any party.