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Rosenau v. City of New Brunswick

Decided: December 6, 1966.

JAMES N. ROSENAU AND NORAH ROSENAU, PLAINTIFFS-APPELLANTS,
v.
CITY OF NEW BRUNSWICK, NEW JERSEY, AND WORTHINGTON GAMON METER COMPANY OF NEWARK, NEW JERSEY, DEFENDANTS-RESPONDENTS



Gaulkin, Lewis and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.

Labrecque

Plaintiffs sued for property damage allegedly brought about by the bursting of a water meter in their home. Defendants are the City of New Brunswick, which operates a water system in that municipality, and Worthington Gamon Meter Company (Gamon), which manufactured the water meter which allegedly burst.

The meter in question was one of 60 purchased by New Brunswick from Gamon in 1942. It was installed in plaintiffs' home by city employees in 1950. Fourteen years later it broke, permitting the escape of water which damaged plaintiffs' property.

By the second count of their complaint plaintiffs sought to hold Gamon liable on the theory of (1) breach of warranty of merchantability and fitness for use, (2) negligence, and (3) strict tort liability. Gamon set up the defense of the statute of limitations and moved for summary judgment on that ground. Following an oral opinion by the trial judge, summary judgment was entered in favor of Gamon, and New Brunswick's claim for contribution and indemnification against Gamon was dismissed. Plaintiffs thereupon filed the present appeal. There was no appeal by New Brunswick and no appearance by it in opposition to the present appeal.

Initially we note that the judgment appealed from is an interlocutory one since New Brunswick remains as a defendant. Peterson v. Falzarano, 6 N.J. 447, 453 (1951); McCombs v. Peniston, 22 N.J. Super. 246, 248 (App. Div. 1952). However, in view of the advisability of an early disposition of the issue involved, we granted leave to appeal at oral argument and proceed to consideration of the merits. R.R. 1:27B(e); Sautto v. Edenboro Apartments, Inc., 69 N.J. Super. 420, 423 (App. Div. 1961).

The trial judge determined, and we agree, that prior to the adoption of the Uniform Commercial Code, a buyer's cause of action based upon breach of warranty of merchantability and fitness for use was governed by N.J.S. 2A:14-1 which provides that:

"Every action at law * * * for any tortious injury to real or personal property, * * * for any tortious injury to the rights of another not stated in sections 2A:14-2 and 2A:14-3 of this title, or for recovery upon a contractual claim or liability, express or implied, not under seal * * * shall be commenced within 6 years next after the cause of any such action shall have accrued." (Emphasis added)

Under that statute a cause of action for breach of a present (as distinguished from a prospective) warranty accrued upon delivery of the product by defendant seller to plaintiff buyer, at which time the buyer became entitled to bring his action regardless of whether consequential damages resulted from the breach. E.O. Painter Fertilizing Co. v. Kil-Tone Co., 105 N.J.L. 109, 111 (E. & A. 1928); Annotation, "Statute of Limitations: When Cause of Action Arises on Action Against Manufacturer or Seller of Product Causing Injury or Death," 4 A.L.R. 3 d 821, 829 (1965); 3 Frumer & Friedman, Products Liability, ยง 40.01[2] (1966); cf. Gogolin v. Williams, 91 N.J.L. 266 (E. & A. 1917); Sullivan v. Stout, 120 N.J.L. 304 (E. & A. 1938). This rule is continued in the Uniform Commercial Code, N.J.S. 12A:2-725 (2), which provides that:

"(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered."

On the other hand, it has generally been held that a cause of action based upon negligence accrues when the damage first occurs and that the statutory period begins to run from that time. Tortorello v. Reinfeld, 6 N.J. 58, 65 (1950); Fredericks v. Town of Dover, 125 N.J.L. 288, 291 (E. & A. 1940). Where the negligence asserted involves a single injury or a sudden trauma, the time begins to run when the injury or trauma is sustained and even in cases where the injury is slight, if it causes some damage, the time of accrual of the statutory period is not deferred until all of

the resulting damage becomes apparent. Tortorello v. ...


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