
    Louis Bronold and Margaret Bronold, Respondents, v. August Engler, Appellant.
    Fourth Department,
    July 9, 1907.
    Plumtiers —.partnership not containing registered member.
    When a partnership engaged in plumbing does not contain any member certified or registered as required by sections 45 and 46 of article 3 of the General City Law, there can be no recovery for labor performed and material furnished, even though a certified and registered manager wa$ employed.
    . McLennan, P. J., dissented.
    
      Appeal by the defendant, August Eugler, fronr h judgment of . the Supreme Court in favor of the plaintiffs, entered in the office of the clerk- of the county of Erie dn- the 14th day of February, 1906, upon the decision of the court, rendered after a trial at the Erie Special Term, and.also from an order entered in said clerk's office on the 14th day of February, 1906, reversing a judgment of the Municipal Court of the city of Buffalo, and granting a new trial in said court. ,
    
      Marc W. Comstock, for the appellant.
    
      George A. Lewis, for the respondents.
   Williams, J.:

The judgment and order appealed from should be reversed, and the judgment of the Municipal Court affirmed, with costs of this appeal and of the Special Term.

The plaintiffs.were copartners, and brought this action to recover for plumbing materials and labor furnished and performed for defendant. One of the defenses interposed by the defendant was that the plaintiffs were engaged in the plumbing business, as employing or master plumbers, in.violation of sections 45 and 46, article 3, of chapter 327 of the Laws of 1900, the General City Law. These sections provide that it shall mot be lawful for any person to- conduct business as an employing or master plumber unless, he has .obtained certificates of competency and registration', as therein provided. The plaintiffs cannot recover for.such work and materials, done and furnished.if in violation of these sections of the statute. (Johnston v. Dahlgren, 166 N. Y. 354.) Neither, of the-members of the plaintiff copartnership had-obtained these certificates, and for this reason this defense was sustained in Municipal Court and judgment was directed for the defendant.

The plaintiffs sought to'avoid -.this defense by showing that they employed a “ general managing ■ ageo%t ” to make all contracts and plans, employ all plumbers and to execute all plumbing work, ■ and generally to conduct the “ employing or master plumber” feature of their business; that he .had the requisite certificates under these sections of the statute and that lie did ffil the business for plaintiffs with the defendant in question in this case.' The Municipal Court did not regard the defense under the statute as avoided by this showing. On appeal the Special Term held the contrary opinion and, therefore, reversed the judgment of the Municipal Court and ordered a new trial. The Court of Appeals has held this statute to be constitutional and we aré not permitted to disregard that decision.

People ex rel. Nechamcus v. Warden, etc. (144 N. Y. 529), was the case of,an individual, not of a copartnership. The relator was indicted, tried and convicted for the offense under chapter 602 of the Laws of 1892, and this decision was made in a habeas corpus proceeding to release relator from imprisonment upon such conviction. This statute was repealed by the General City Law passed in 1900, but the provisions of the former act, so far as we are interested in them here, were re-enacted by the General City Law.

Schnaier v. Navarre Hotel & Importation Co. (182 N. Y. 83) •was a case-under chapter 803 of the Laws of 1896, providing that it should be unlawful for a copartnership in the city of New York to engage in the business of employing or master plumbers unless each and every member thereof should have, been examined, certified) registered, etc. The action was by the assignee of a copartnership of two members, one of whom was duly certified, registered, etc., under the law, but the other member was not. • The Court of Appeals held a recovery could be had ; that the act so far as it required Tooth members to be so certified, registered, etc., was unconstitutional. This is as far as the Court of Appeals has gone, and we are asked now to go a step further and hold, that neither member of a firm need be certified or registered if only it employs a certified and registered manager or superintendent. We do not think the courts have power to so manipulate and do away with statutes passed by the Legislature. It-is .very likely that under this statute uncertified and unregistered persons may be prohibited from engaging in and carrying on this class of business unless they join with themselves as a partner a certified and registered person. Very likely a corporation may be unable to carry on the business at all, because it cannot as a person be .certified and registered. But if a copartnership may carry on - the business when none of its members are certified or registered, by employing a-certified and registered manager or -uperintendent, then we see no reason why an individual might not do the same thing,' and • the statute would be held to permit what by its express terms it prohibits.

In the two cases above cited the Court of Appeals divided on close lines, its members being changed between the times the two cases were decided. ' The two decisions are apparently not quite harmonious. This case is different from both of them. What that court may decide as ■ to the constitutionality of this statute when applied -to the facts of this case we cannot say. r We cannot judicially construe the statute out of existence. If it is desirable tó get rid of it, the court holding it constitutional, the Legislature should be askéd to repeal or modify it.

All concurred, except McLennan, P. J., who dissented.

Judgment and order.appealed from reversed and judgment of the Municipal Court affirmed, with costs to the plaintiffs in all courts.  