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Levine v. Bochiaro

Decided: April 21, 1947.

HERBERT LEVINE, SAM LEVINE, JACK HIRSCH, BESSIE MENDELSOHN, AND ELSIE J. PEARL, A PARTNERSHIP, TRADING AS DUCHESS ROYAL, PLAINTIFFS-APPELLEES,
v.
PETER BOCHIARO, TRADING AS ANNETTE CONTRACTORS, DEFENDANT, AND ROSE PECORELLA AND GEORGE PECORELLA, DEFENDANTS-APPELLANTS



On appeal from the District Court of the Fifth Judicial District of the County of Bergen.

For the defendants-appellants, Rose Pecorella and George Pecorella, Aaron Heller and Murray A. Laiks (Aaron Heller, of counsel).

For the plaintiffs-appellees, Adolph Schlesinger.

Before Justices Parker, Donges and Eastwood.

Eastwood

The opinion of the court was delivered by

EASTWOOD, J. This is an appeal from a judgment of the District Court, without a jury, in favor of the plaintiffs-appellees, and against the defendants-appellants, Rose Pecorella and George Pecorella, in the sum of $500. A judgment of no cause of action was entered in favor of the defendant Peter Bochiaro, trading as Annette Contractors, and no appeal from that portion of the trial court's judgment has

been taken. We are, therefore, concerned solely with the propriety of the judgment entered against the defendants-appellants, Rose Pecorella and George Pecorella.

In their specification of determinations of the District Court, with which defendants-appellants are dissatisfied in point of law, two grounds for reversal are urged. They are: (1) that the work of repairing the oil burner in question was done by an independent contractor, experienced in the type of work and that, inasmuch as there was no evidence that the company that performed the work was unskillful or inexperienced, there was no liability as to the owner of the property, the defendants-appellants herein; and (2) that the action was one of alleged tort arising out of a contract and there was no privity of contract between the plaintiffs and these defendants, as result of which there was no liability.

The defendants Pecorella owned a building, part of which was rented to Bochiaro, who was in the business of making garments out of material furnished by customers, and who had in his possession for that purpose material belonging to the plaintiffs. The heating plant in that building was apparently defective, as it exploded and damaged the material of the plaintiffs, who sued Bochiaro, as their bailee and contractor, and the Pecorellas, as owners of the building, claiming negligence in the operation of the heating plant.

Under the rental arrangement between Annette Contractors and the Pecorellas, the latter as owners were required to furnish heat for that portion of the premises occupied by Annette Contractors. For some time prior to December 1st, 1945, the oil burner in the cellar of the premises had not been functioning properly, and in order that the same might be put in proper working order, defendant-appellant, George Pecorella, engaged the services of the Milos System Devices, a company long experienced in repairing oil burners.

Mr. Milos commenced his repair work about October 15th, 1945, and completed the work on November 30th, 1945. Milos and his own employees performed the work of repairing the oil burner. The work having been completed on November ...


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