Black v. Popper — 45 N.Y.S. 927

Majority

p. 927

BLACK v. POPPER.

(Supreme Court, Appellate Term.

May 27, 1897.)

Headnote

COUNTERCLAIM—WORK DONE BY UNLICENSED PLUMBER.

In an action for the price of plumbing work done by plaintiff, defendant may be allowed a counterclaim for the cost of completing the work which plaintiff had done in a defective manner, though the person employed by • defendant to complete the work was not a licensed plumber, where the work done by him was such as carpenters may do in reference to plumbing.

Appeal from Fourth district court.

Action by Louis Black against Herman Popper. There was a judgment in favor of defendant, and plaintiff appeals.

Affirmed.

Argued before DALY, P. J., and McADAM and BISCHOFF, JJ.

L. S. Lewkowitz, for appellant.

C. C. Levenson, for respondent.

The action was to foreclose a mechanic’s lien on the defendant’s property for plumbing work alleged to have been performed by plaintiff, at an agreed price of $42, and for extra work and material, amounting to $13. The defendant admitted the $42 contract, but alleged that the work was done in a defective and unworkmanlike manner, and was not worth more than $20, which sum he tendered to the plaintiff, and paid into court before joining issue, and that he was compelled to expend the sum of $22 to complete the work called for by the contract, which the plaintiff left undone. The rendition of the services and furnishing of the material for which the charge of $13 was made were denied. The evidence as to the issues was conflicting, and the justice, after hearing the entire proofs, decided in favor of the defendant. The evidence sufficiently justifies the judgment, and there is but one question which requires comment.

The appellant claims that that portion of the counterclaim for money paid by the defendant to one Loewry to complete the plaintiff’s contract should not have been allowed, because Loewry was not a licensed plumber. Laws 1892, c. 602. Assuming that this is a question which the appellant has a right to raise, the answer is that the work performed by Loewry was not necessarily plumbing work, but such work as carpenters do, in reference to which the statute has no application. See People v. O’Connell, 1 App. Div. 110 , 36 N. Y. Supp. 1092 .

The judgment must be affirmed, with costs. All concur.