Levine v. Bochiaro

• Decision Date: 21 April 1947
• Docket Number: No. 401.,401.
• Citation: 135 N.J.L. 423,52 A.2d 528
• Parties: LEVINE et al. v. BOCHIARO et al.
• Court: New Jersey Supreme Court

135 N.J.L. 423

52 A.2d 528

LEVINE et al.

v.BOCHIARO et al.

No. 401.

Supreme Court of New Jersey.

April 21, 1947.

Action by Herbert Levine and others, a partnership, trading as Duchess Royal, against Peter Bochiaro, trading as Annette Contractors, and Rose Pecorella and George Pecorella to recover for damage to materials caused by the explosion of an oil burner. From a judgment for the plaintiffs against the last two named defendants, those defendants appeal.

Judgment reversed.

Appeal from District Court of Fifth Judicial District, Bergen county.

January term, 1947, before PARKER, DONGES and EASTWOOD, JJ.

Aaron Heller and Murray A. Laiks, both of Passaic (Aaron Heller, of Passaic, of counsel), for defendants-appellants, Rose Pecorella and George Pecorella.

Adolph Schlesinger, of Hackensack, for plaintiffs-appellees.

EASTWOOD, Justice.

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 1, 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 15, 1945, and completed the work on November 30, 1945. Milos and his own employees performed the work of repairing the oil burner. The work having been completed on November 30, 1945, as stated, Milos started the oil burner for the first time upon completion of the work. During the early hours of the morning of the next day, December 1, 1945, an explosion of the oil burner occurred for reasons that are not clearly apparent. As a result of the explosion, a great quantity of soot, smoke and dirt permeated the premises of Annette Contractors with resultant damage to the merchandise of the plaintiffs-appellees, some of which had already been manufactured into women's slacks.

Addressing our attention to ground (1) for reversal, it is undisputed that the Pecorellas employed Milos System Devices for the purpose of making the necessary repairs to the oil burner to put it in good condition, and...