People v. O'Connell — 11 N.Y. Crim. 49

Majority

p. 49

Supreme Court—Appellate Division—First Department.

January 24, 1896.

PEOPLE v. JOHN O’CONNELL.

(72 S. R. 39.)

Headnote

1. License—Master plumber.*

Chapter 602 of 1892, as amended by chapter 66 of 1893, applies only to one who pursues the trade of a plumber, and is engaged in such trade as an employing or master plumber.

2. Same.

A chief engineer of a hotel, who receives a fixed salary as such and is authorized to hire plumbers, and steam fitters to assist him in performing work which he is unable to do by himself, is not engaged as employing or master plumber.

p. 50

Appeal from a judgment confirming the conviction of defendant.

William J. Fanning, for appellant.

John R. Fellows, for People.

The defendant was convicted of violating the provisions of chapter 602, Laws 1892, as amended by chapter 66, Laws 1893. Section 1 provides for the formation, in each city of the state, of a board to be known in this county as the “Examining Board of Plumbers,” and specifies how it shall be composed. Section 5 compels “any person desiring or intending to conduct the trade, business or calling of a plumber or of plumbing in any of the cities of this state, as employing or master plumber,” to submit to an examination by the hoard, and makes it unlawful for him to conduct such trade, business,. or calling without a certificate of the board as to his competency. Any violation of the provisions of the act is made a misdemeanor. Section IS. This act has been declared constitutional, People ex rel. Nechamus v. Warden of City Prison, 144 N. Y. 529 ; 64 St. Rep. 51 ; and the only question for us to consider is whether the defendant has violated it.

The facts are simple and undisputed. Plaintiff is, and long has been, chief .engineer of the Fifth Avenue Hotel, and receives a fixed salary as such. Among his other duties is that of hiring plumbers and steam fitters to assist him in performing work which he is unable to do by himself. Between June 1 and 19, 1894, defendant hired some five or six journeymen plumbers to make repairs on the hotel property. He was in control, and directed the work, but, on the other hand, the men, as well as himself, were paid by the 'hotel. It is admitted that he had not obtained the certificate required by section 5 of the act. Is this, within the meaning of that section, conducting the business of “a plumber or of plumbing, * *^[1] as employing or master plumber” ? The plain reading of the statute shows that the defendant did not come within its terms. It applies only to one who—First, pursues the trade of a plumber; and, second, is engaged in such trade as an employing or master plumber.

* Whenever a person holds himself out, and undertakes to do work, as a plumber, he must, if he employs assistants to perform the work, comply with the law and procure his certificate. People ex rel. Nechamcus v. Wardens, etc., 144 N. Y. 529 ; 64 S. R. 51; rev’g 81 Hun, 434 ; 63 S. R. 283; 30 Supp. 1095.

p. 51

Defendant was not engaged in the trade of a plumber. That was not his business, trade, or calling. He was the engineer of a building; and although it was part of his duty to do such jobs of plumbing as might arise in that building, and, if necessary, hire others to assist him in the work, yet this did not change his real calling, or make it that of a plumber. It is a plain misuse of terms to say that, because of this incident to his real calling, he was engaged in the “trade, business or calling of a plumber or of plumbing.” Still less was he so engaged as employing or master plumber; not certainly as employing plumber, in view of the fact that the journeymen were employed and paid by the defendant’s own employer. But 'he was not even engaged as “master plumber,” for the reason that the supervision contemplated by the statute was not called for by the character of the work actually done. In a broad general sense, there was, undoubtedly, selection and supervision, but such supervision was not that of a master plumber. It was, in substance, the supervision of a fellow journeyman, clothed temporarily by the common master with the power of direction with regard to 'Ordinary repairs. It was quite as though the proprietor of the hotel had himself directed the journeymen what to do, and had looked after them to see that they did it. Such an employment is clearly not within the mischiefs which the act aimed to correct. The act was intended to protect the public against people who jeopardized its health, by ignorantly pursuing a calling which called for expert knowledge. It was certainly not intended to prevent a householder or a householder’s servant from sending for and employing a journeyman plumber to stop a leak until such householder or servant had passed a civil-service examination.

The judgment of conviction should be reversed.

All concur.

Cases cited

People ex rel. Nechamcus v. Warden of the City Prison 144 N. Y. 529 N.Y. 1895-01-29 p. 50