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Levine v. Bochiaro

Decided: May 13, 1948.

HERBERT LEVINE ET AL., PLAINTIFFS-APPELLANTS,
v.
PETER BOCHIARO, DOING BUSINESS AS ANNETTE CONTRACTORS, DEFENDANT, AND ROSE PECORELLA AND GEORGE PECORELLA, DEFENDANTS-RESPONDENTS



On appeal from the Supreme Court, whose opinion is reported in 135 N.J.L. 423.

For the plaintiffs-appellants, L. Stanley Ford and Adolph Schlesinger.

For the defendants-respondents, Murray A. Laiks and Aaron Heller.

Schettino

The opinion of the court was delivered by

SCHETTINO, J. This is an appeal from a judgment of the Supreme Court reversing a judgment in favor of the plaintiffs and against the defendants Rose Pecorella and George Pecorella, entered in the Fifth Judicial District Court of the County of Bergen. The trial court gave judgment in favor of the defendant Bochiaro, from which plaintiffs did not appeal.

Rose Pecorella and George Pecorella owned a factory building occupied by several tenants. These defendants controlled and operated a common heating system. Personal property owned by the plaintiffs was in the possession of a tenant for processing. As the result of an explosion within a boiler, soot and smoke escaped and permeated the demised premises, causing damage to the property of the plaintiffs. For that damage, plaintiffs recovered judgment.

On appeal to the Supreme Court defendants raised the single question whether the trial court erred in denying their motion for judgment. The Supreme Court concluded that the loss was caused solely by the failure of an independent contractor, engaged by these defendants, to make proper repairs to an oil burner. On the facts as thus conceived, the Supreme Court disposed of the case by holding that, where a lessor engages a reputable contractor to place a common facility in good working order, the lessor is not liable for the failure of the contractor to achieve the result for which he was engaged.

We think that the judgment of Supreme Court must be reversed and the judgment of the District Court affirmed.

We are unable to agree that the record shows that the loss resulted solely from the failure of the independent contractor to perform properly the work for which he was engaged. From the agreed state of facts, it appears that an engineering expert in heating equipment testified to the following: There were two boilers. The boiler in which the explosion occurred was a steel horizontal fire tube low pressure heating boiler, fired by an oil burner. The other boiler was a high pressure vertical steel boiler also fired by an oil burner. Both boilers were connected to a common chimney by means of a metal flue pipe connection. The chimney clean-out door was missing. The boiler room was not tight or fireproof in that the top course of blocks was missing so that soot and smoke generated in the boiler room could escape to other parts of the building. The oil burner which was involved in the occurrence had been installed in the fire-door rather than in the ashpit door as required by proper installation, and the fire-door had been cut in half to permit the introduction of the blast tube into the furnace. On the day in question, the fire retarding boiler room door was left ajar.

The expert further testified that, because the blast tube was installed through the fire-door, the combustion volume of the boiler was so reduced that there was insufficient space to absorb the normal expansion of the burning oil vapors, that the single chimney was inadequate to serve both boilers, that it was probable that both oil burners started at the same time, with the result that the expanding burning oil vapors forced the doors open and that the oil burner continued to operate producing soot and smoke which poured out of the boiler room into the rest of the building.

Defendants offered testimony that sometime before December 1st, 1945, there had been some water in the cellar as a result of which the oil burner was not in good working order. Defendants engaged Milos System Devices, long experienced in repairing oil burners, to put the oil burner in good condition. Milos was concededly an independent contractor. The repair work was started on October 15th, 1945, and completed on November 30th, 1945. The oil burner ...


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