Majority
p. 185N. MARGOLYS & CO. v. GOLDSTEIN. (Supreme Court, Appellate Term. November 24, 1905.) Argued before SCOTT, P. J., and GILDERSLEEVE and Mac-LEAN, JJ.
Headnote
Licenses—Failure to Pbocure—Affirmative Defenses.A defense that one suing for repairing a hot water plant in a building was riot a licensed plumber, as required by the statute relating to plumbers, is an affirmative one, and provable when pleaded.
[Ed. Note.—For cases in point, see vol. 32, Cent. Dig. Licenses, § 78.]
Appeal from Municipal Court, Borough of Manhattan, Fifth District.
Action by N. Margolys & Co. against Samuel Goldstein. From a judgment for plaintiff, defendant appeals.
Affirmed.
Max Brown, for appellant.
Emanuel Klein, for respondent.
It is certified in the return that the plaintiff, by verified complaint annexed, complained for work, labor, and services
p. 186
and materials furnished, and that the defendant, by verified answer annexed, interposed a general denial and a demand for particulars. Neither pleading is annexed, though particulars were furnished. After the plaintiff had testified to the work upon request, that he had “repaired a Rider engine and the heaters and boilers and the hot water supply pipes in the building,” he testified, in answer to questions by defendant’s counsel that he was not a licensed plumber, and thereupon counsel moved for a nonsuit on the ground that plaintiff had failed to make out a cause and to show that he was a licensed plumber. This was affirmative defense, provable when pleaded, or by amendment, which was not the case herein. Were it so, however, in view of the evidence of the nature and character of the work performed, the trial justice might well have found that it was not as now characterized by the defendant, and so .not within the inhibition of the statute relating to licensed plumbers, and his determination upon the conflict of evidence may not be disturbed.
Judgment affirmed, with costs. All concur.