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Tanella v. Rettagliata

Decided: July 19, 1972.


Paul R. Huot, J.d.c.


[120 NJSuper Page 403] In this action plaintiffs seek (1) damages for the value of a washer and a dryer; (2) damages

for distraint of a washer and dryer; and (3) damages for trespass. Defendant counter-claims for rent due March, April, May and June at the rate of $235 per month, and damages to the garage located upon the property. Plaintiffs' defenses to the counterclaim raise interesting legal questions.

Plaintiffs and defendant entered into a written lease agreement, Ex. J-1 Ev., by which plaintiffs (tenants) leased from the defendant (landlord) an apartment on the second floor of premises known as 263 Terrace Avenue, Hasbrouck Heights, New Jersey, for a term of two years beginning July 1, 1969 and terminating June 30, 1971, at a monthly rental of $215 per month during the first year of said term and $235 per month during the second year of said term.

The plaintiffs entered into possession of the apartment and continued therein without event until 1971. Personal problems then developed and under date of February 18, 1971 the plaintiffs wrote to the defendant, Ex. D-1 Ev., requesting a termination of the lease on March 31, 1971 and use of the security deposit for March rent.

The defendant replied under date of March 2, 1971, Ex. D-2 Ev., indicating conditions to be met by plaintiffs to obtain defendant's consent to termination and requiring that such terms be accepted by March 5, 1971.

The plaintiffs did not respond to Ex. D-2 Ev. by March 5, 1971 (which the court notes was a Friday) and on March 8, 1971 a summons and complaint in tenancy was issued from this court by defendant. A copy of the same was served upon the plaintiffs by the constable on March 11, 1971 by affixing a copy to the door of the premises. The return date for trial of the landlord-tenant dispossess was March 18, 1971 at which time the plaintiffs herein did not appear. The case was marked default but no proofs were ever received and no judgment of possession was entered. The tenancy complaint sought possession for nonpayment of the rent due March, 1971.

The plaintiffs removed their possessions, except the washer and dryer, from the premises on March 19, 1971.


In this action the plaintiffs seek the value of the washer and dryer which they contend was not removed because the defendant would not permit peaceable removal. The defendant denies this but admits that she did require, before removal, that plaintiffs provide a licensed plumber to disconnect the appliances.

The court finds as a fact that defendant did prevent plaintiffs from removing the washer and dryer on March 19, 1971 and required the services of a licensed plumber as a condition for removal. The court finds that defendant paid a licensed plumber $36.75 on or before July 1, 1971 to remove said appliances and to place them in her garage. The court further finds that since July 1, 1971 the washer and dryer were available to plaintiffs for the taking, but that plaintiffs did not obtain the same until March, 1972.

The complaint in the instant matter was filed June 2, 1971 and seeks damages for the retention of the washer and dryer. These items are now in possession of the plaintiffs so that their value has been eliminated from this case as a measure of damages.

Plaintiffs contend that they are entitled, at least, to the reasonable rental value of the washer and dryer or the cost of doing laundry at a commercial laundry for the period of one year that they were deprived of their appliances.

Defendant contends that plaintiffs are not entitled to any money for such deprivation because the failure to have the use of their appliances was caused by plaintiffs' acts. Defendant contends that the request for a licensed plumber was reasonable on the part of defendant, that plaintiffs could have obtained such plumber, removed their appliances and, if they felt it to be an unreasonable expense, sued for the costs.

The Building Inspector of the Borough of Hasbrouck Heights was called by the plaintiffs as an expert to

testify that a licensed plumber was not required to disconnect the washer and dryer. The court accepts this as a fact and finds the requirement by the defendant to be unreasonable. However, the court finds equally unreasonable the refusal of the plaintiffs to obtain a plumber for such removal. To leave behind two valuable and necessary appliances because of defendant's demand for a plumber is nonsensical. Plaintiffs' damage was caused more by their own acts than by the act of defendant.


The defendant has counterclaimed for rent for the months of March, April and May at $235 per month, less the security of $215 or a net of $490 in the first count of the counterclaim and for $150 damages to the garage in the second count. No evidence was adduced by the defendant concerning damage to the ...

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