Conford, Kilkenny and Lewis. The opinion of the court was delivered by Kilkenny, J.A.D.
Defendant, owner of a 296-unit garden-type apartment house complex in East Paterson, Bergen County, was found guilty in the municipal court of violating the borough heating ordinance on March 14, 1963, by failing to maintain on that date the required minimum temperature of 68 degree Fahrenheit in 17 of the apartments in this housing project. The complaints contained 17 counts, one for each apartment not properly heated. The magistrate fined defendant $100 on each count, for a total of $1,700.
On defendant's appeal to the Bergen County Court there was a plenary trial de novo and defendant was again found guilty. The same fine was imposed. Defendant has taken this appeal from the judgment of the County Court.
Defendant's first contention is that there was a failure of proof of violation of the ordinance.
The ordinance, so far as pertinent here, provides:
"Section 1. It shall be the duty of every * * * corporation who shall have contracted or undertaken, or who shall be bound to heat or to furnish heat for any building or part thereof, occupied as a home or place of residence * * *, to heat or to furnish heat for every occupied room in such building or part thereof, so that a minimum temperature of 68 degrees Fahrenheit shall be maintained therein at all times * * *.
Section 2. Any * * * corporation violating * * * this Ordinance upon conviction thereof shall be subject to a fine of up to $100 * * *. Each day that a violation shall exist or continue shall constitute a separate and distinct offense."
On March 14, 1963, about 8:15 A.M., the borough health inspector received telephone calls at his home from tenants in defendant's apartment houses, complaining that they didn't have any heat in their apartments. The health inspector went immediately to the apartments and took temperature readings in each of the apartments in question, finding in each case a reading of less than 68 degree Fahrenheit. The highest inside reading was 65 degree Fahrenheit. The lowest was 58 degree. The outside temperature was 37 degree. He took the apartment temperature readings in what he deemed to be the coldest part of each apartment, because some of the tenants were trying to keep warm by wearing sweaters or jackets and by keeping their kitchen gas ranges lit. Thus, the health inspector took his readings in a bedroom or living room rather than in the warmer kitchen. In each instance, he checked all the radiators and found them "cold." He observed that all the windows were closed. Based upon his findings, the health inspector made his 17-count complaints, charging violations of the borough heating ordinance.
The health inspector had received a telephone call about 8 P.M. on the preceding evening, March 13, 1963, from the president of defendant corporation, advising him that something had happened to boiler No. 3 -- which supplies heat to all the apartments involved in the violations charged -- that there had been an internal fire in this boiler, causing it to be shut off Defendant's president testified that he advised the health inspector
that he had called the service people to make the necessary repairs, if possible, through the night but, if not, to be there first thing in the morning of March 14.
The repairs were not begun until about 7 A.M. on March 14, and about 4:30 P.M. that day the boiler and oil-burning unit were in operation. However, No. 6 oil was used and this cheaper grade of fuel oil requires preheating and operation of the boiler and burner for some time before there are a "good fire" and sufficient temperature. As a result, "it was dark" when the last two men in the service group left the premises.
One of the servicemen who had made the repairs testified that there had been a carbon build-up in front of the burner, that this caused a fire in the chamber of the boiler itself, and the excessive heat from the fire in the boiler caused damage to the burner and its consequent shutting off. The wiring in the burner was damaged and a rewiring was required. The fan, the cup and the front plate were all warped. The damaged parts were replaced, and it was necessary to do some inside chamber work in order to get the burner in operation. The trial judge inquired of this witness as to what he meant by "a carbon buildup" and he answered:
"Well, with this No. 6 oil, it impinges on anything that is in direct line of fire and then it gradually just builds ...