Chusid v. Whale Oil Co.

Appellate Division of the Supreme Court of New York

Chusid v. Whale Oil Co.

17 A.D.2d 846, 233 N.Y.S.2d 272, 1962 N.Y. App. Div. LEXIS 7588

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 22, 1962

StatusPublished

This text of 17 A.D.2d 846 (Chusid v. Whale Oil Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Chusid v. Whale Oil Co., 17 A.D.2d 846, 233 N.Y.S.2d 272, 1962 N.Y. App. Div. LEXIS 7588 (N.Y. Ct. App. 1962).

Pincite

Opinion

In an action to recover for soot damage to plaintiffs’ home and furnishings by reason of (a) defendant’s negligent maintenance and repair of plaintiffs’ oil burner (first cause of action); and (b) defendant’s breach of a contract between the parties which required defendant to service such oil burner (second cause of action), plaintiffs appeal from a judgment of the [847]*847Supreme Court, Nassau County, entered February 7, 1962 after a jury trial, in favor of the defendant, dismissing the complaint on the merits at the end of the plaintiffs’ ease. Judgment affirmed, with costs. In our opinion, the proof adduced by the plaintiffs established that the accumulation of soot in the oil burner was caused by a defect hi its combustion chamber, and not by any act or omission on the defendant’s part under its service contract. That agreement imposed no duty on the defendant to repair or to replace the combustion chamber. In any event, proof was lacking that any excess oil (which results from a faulty combustion chamber and causes soot) was visible to defendant’s repairmen prior to their replacement of the chamber at plaintiffs’ request. Under the circumstances, it must be concluded that as to both causes of action plaintiffs failed to make out a prima facie case. Beldóek, P. J., Ughetta, Kleinfeld, Hill and Babin, J J., concur.

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In an action to recover for soot damage to plaintiffs’ home and furnishings by reason of (a) defendant’s negligent maintenance and repair of plaintiffs’ oil burner (first cause of action); and (b) defendant’s breach of a contract between the parties which required defendant to service such oil burner (second cause of action), plaintiffs appeal from a judgment of the [847]*847Supreme Court, Nassau County, entered February 7, 1962 after a jury trial, in favor of the defendant, dismissing the complaint on the merits at the end of the plaintiffs’ ease. Judgment affirmed, with costs. In our opinion, the proof adduced by the plaintiffs established that the accumulation of soot in the oil burner was caused by a defect hi its combustion chamber, and not by any act or omission on the defendant’s part under its service contract. That agreement imposed no duty on the defendant to repair or to replace the combustion chamber. In any event, proof was lacking that any excess oil (which results from a faulty combustion chamber and causes soot) was visible to defendant’s repairmen prior to their replacement of the chamber at plaintiffs’ request. Under the circumstances, it must be concluded that as to both causes of action plaintiffs failed to make out a prima facie case. Beldóek, P. J., Ughetta, Kleinfeld, Hill and Babin, J J., concur.

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Bluebook (online)

17 A.D.2d 846, 233 N.Y.S.2d 272, 1962 N.Y. App. Div. LEXIS 7588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chusid-v-whale-oil-co-nyappdiv-1962.