52 N.Y.S. 555 | N.Y. App. Div. | 1898
Lead Opinion
The plaintiffs are master plumbers engaged in business in the city of New York, and were such in the month of December, 1894. .The defendant was the owner of a house in Fifty-sixth street iu that city, and in the month of December, 1894, lie employed the plaintiffs . to do some plumbing in that house. Conversations were had with regard to the amount and cost of the work, which was estimated at that time to be considerably less than afterwards was expended upon it. The plaintiffs undertook the work, but it was speedily ascertained, that in addition to the plumbing, a large amount of carpenter work and painting would be necessary, and the defendant.
It appeared that the plaintiffs were master or employing plumbers, and that a very large portion of the claim which they made was for work done and materials furnished by them in that business. The plaintiffs, although they had a certificate of competency to do work as plumbers under the provisions of chapter 602 of the Laws of 1892, had never registered their name and address at the office of the board of health, or received a certificate of such registration, as required by that statute; and the defendant claimed that as the statute, in terms, made it unlawful for any person to carry on or engage in the trade or business of an employing plumber in any of the cities of the State unless his name and address had been registered with the board of health as required (Laws of 1892, chap. 602, § 6; Laws of 1893, chap. 66), they were not entitled to recover for the work thus made unlawful by the statute. Upon the trial the referee held that the contract by the plaintiffs to do the plumbing was unlawful because they had not complied with the statute cited above; that the contract was an entire contract, and, therefore, the whole of it was unlawful; and that for that reason the plaintiffs were not entitled to recover anything, either upon the plumbing contract or the contracts for painting and carpentering work which they had procured to be done. And from the judgment entered upon this report this appeal is taken.
It is objected by the plaintiffs, in the first place, that the invalidity of the contract is not sufficiently pleaded. The answer sets up as a separate defense that at the! time set forth in the complaint dur
But the referee went further and held that the contract was an entire contract; that as a portion of it was void, the whole was void, .and that, therefore, the plaintiffs were not entitled to recover anything. The evidence shows that the plaintiffs were first employed vto do the plumbing in the house; that almost immediately after the
The plaintiffs claim also that the payments which were made upon the work from time to time were applied by them, upon the plumbing, and should be credited upon that, and that for that reason they are entitled to recover the difference between the amount of the other work and the remnant of payments applicable upon that work, after the plumbing has been fully paid for. It is unnecessary to consider this contention. Whether the payments
For the error of the referee above stated, however, a new trial must be ordered before another referee, with costs to the appellant to abide the event.
Van Brunt, P, J., and Patterson, J., concurred.
Concurrence Opinion
I concur with Mr. Justice Rumsey in the reversal of this judgment, but I do not concur in the conclusion that a plumber who has not complied with the provisions of chapter 602 of the Law's of 1892 to do plumbing work cannot, after the contract has been performed and the work furnished under it, recover from the other party to the contrac t for the work and materials that have been actually furnished. This act in question is entitled “ An act to secure the registration of plumbers and the supervision of plumbing and drainage in the cities of the State of New York,” and the act provides a method by which those wishing to engage in the business of plumbing in the said cities shall be examined by a board to be appointed by the mayor in each of the cities of the State, and to issue a certificate of competency to all such persons wrho shall have submitted to and passed a satisfactory examination before such board. By section 5 of the act it is provided that “ 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, shall be required to submit to an examination before such board of examiners as to liis experience and qualifications in such trade, business or calling; and after the first day of March, eighteen hundred and ninety-three, it shall not be lawful in any city of this State for any person to conduct such trade, business or calling, unless he shall have first obtained a certificate of competency from such board of the city in which he conducts or proposes to conduct such business.” By section 6 of the act it is provided that“ after the first day of March,
Judgment reversed and new trial ordered before another referee,with costs to appellants to abide event.