Putnam v. Siravo

124 N.Y.S. 1105 | N.Y. App. Div. | 1910

Rich, J.:

This action is brought to foreclose a mechanic’s lien. At the opening of the case for trial the defendant moved to dismiss the complaint upon the ground “ that there is no allegation contained therein that the plaintiff herein is a duly licensed and registered plumber under the laws of the State,” and on the further ground that there is no allegation contained in the complaint that prior to the commencement of the work the plans and description thereof were filed in the department of buildings of the city of New York, or approved by the superintendent of buildings, as required by chapter 803 of the Laws of 1896. The motion was granted, and from the judgment accordingly entered this appeal is taken.

The complaint alleges that the plaintiff agreed with the defendant Siravo “ to perform, or procure to be performed all the labor and furnish, or procure to be furnished all the materials necessary ” for the plumbing, heating and electric lighting. This was the allegation of a valid contract, irrespective of whether the plaintiff was a licensed and registered plumber. It is then alleged that plaintiff entered into a contract with one Howarth for the performance of all the plumbing work, who did the same, and that he was a duly licensed and authorized plumber, and had complied with all the requirements of the laws of the State of New York, the ordinances of the city of New York, and rules established by the building department of said city relating'to the licensing and registration of plumbers. A lawful contract and its due performance were stated in these allegations, and it was not necessary that the plaintiff should allege that he, himself, was a duly licensed and registered plumber. A person may lawfully contract to procure the performance of this class of labor, and if he procures its performance by a duly licensed and registered plumber, the fact that he himself is not licensed and registered as a plumber furnishes no defense to his action for his contract compensation. He is not an employing or master plumber, carrying on his trade, business or calling in the city of New' York, but a citizen who has contracted to procure plumbing work to be done by a licensed and registered plumber, and his subcontract with such a plumber for the performance of such work does not bring him within the condemnation of the statute. It is argued that the agreement alleged by the answer and annexed as an exhibit thereto does not contain the words “procure to be performed.” This is true. The paper referred to contains no statement that any one was to do the work. It is a very indefinite memorandum, merely stating certain work and material as constituting the plumbing, electric work and steam heating, in a house being built for the defendant by John Schroll, on the Richmond road, its price and times of payment. It is in form a letter addressed to the defendant, and written upon a letterhead of “ H. W. Putnam & Co.,” and is signed only by that company; and this is not the contract alleged in the complaint. In addition to this, it was not before the court on the motion. The complaint was dismissed because it did not contain certain allegations, and not because there was annexed to the answer an instrument alleged by the defendant to have been the contract upon which plaintiffs right of action rested.

It follows that the complaint was erroneously dismissed, and that the judgment must be reversed and a new trial granted, costs to abide the event.

Woodward, Jenks, Thomas and Carr, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.