Lanzer v. Unterberg — 60 N.Y. St. Rep. 839

Majority

p. 839

Simon Lanzer, App’lt, v. Israel Unterberg, Resp’t.

(New York City Court, General Term,

Filed June 20, 1894.)

Headnote

1. License—Plumber.

A plumber doing business in the city of New York, in order to recover for services rendered, must register his name with the board of health of the city of New York.

2. Same—Burden.

He must show, in such action, that he has complied with the law.

This action is brought for work, labor and services rendered by the plaintiff to defendant as a plumber. On the trial after the plaintiff had rested, the defendant moved to dismiss the complaint, 011 the ground that the plaintiff had no cause of action in so far that a plumber in order to transact business is required to be licensed, which motion was granted. This appeal is from the judgment entered upon such dismissal.

Chapter 450 of the Laws of 1881, provides that every master journeyman plumber in the cities of New York or Brooklyn should register his name with the health departments of said cities, and after the first day of March 1882, it shall not be lawful for any person to carry on the trade of plumbing in said cities unless his name be so registered ; § 536 of chapter 12 of the consolidation act passed 1882, reenacts the Laws of 1881. Chapter 602 of the Laws of 1892, provides that any person desiring or intending to conduct the trade, business or calling of a plumber in any city of this state shall submit to an examination as to his qualifications and experience, and § 6 of the same reenacts the Laws of 1881 and 1882 as to the registry by such plumber with the board of health. The claim therefore by the appellant that the amendment passed in 1893, extending the time to register until

Dissent

p. 840

September, 1893, can be of no avail to him, as the Law of 1892, which was thus amended in 1893, merely extended the laws applicable to the cities of New York and Brooklyn to other portions of this state. At the time of the making of the contract which the plaintiff seeks to enforce, he had failed to register his name with the board of health of the city of New York. It was the duty of the plaintiff to have produced on the trial of this action evidence of his having complied with the law. Ferdon v. Cunningham, 20 How. Pr. 154 ; Bloom v. Saberski, 59 St. Rep. 277 ; 28 N. Y. Supp. 731 . There is no evidence in this case that he either obtained a certificate or registered as required bylaw. The judgment appealed from must therefore be affirmed with costs. Conlan, J., concurs. Fitzsimons, J., dissents.

I cannot agree with the foregoing opinion. The objection that plaintiff was not a licensed plumber should have been taken by demurrer or answer. A failure to do so is a waiver of such objection, Amer. Type F. Co. v. Connor, 56 St. Rep. 398 ; 26 N. Y. Supp. 743 ; besides, the act requiring master plumbers to be licensed prescribes the penalty and punishment; the failure to procure such a license is simply a misdemeanor. It does not follow that he cannot in a civil action recover the value of services rendered or materials furnished in the business as plumber. Judgment should be reversed and a new trial ordered with costs to appellant to abide event.

Cases cited

Ferdon v. Cunningham 20 How. Pr. 154 N.Y.C.P. p. 840