
    Simon Lanzer, Appellant, v. Israel Unterberg, Respondent.
    (City Court of New York —General Term,
    June, 1894.)
    A plumber doing business in the city of New York cannot recover in an action for work, labor and services performed as such without proof that he registered in compliance with the provisions of chapter 450, Laws of 1881.
    The time to register in such cities was not extended until September, 1893, by chapter 66, Laws of 1893, as chapter 603, Laws of 1893, which was thus amended by the act of 1893, merely extended the laws applicable to those cities to other portions of the state.
    (Fitzsimons, J., dissents.)
    Appeal from judgment entered upon dismissal of the complaint.
    
      Philip Levy, for appellant.
    
      Davis & Kaufman, for respondent.
   Newburger, J.

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 on 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 Hew York or Brooklyn should register his name with the health departments of said cities, and after the 1st 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. Section 536 of chapter 12 of the Consolidation Act, passed 1882, reenacts the law 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 section 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 extended the time to register until 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 Hew 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 Hew 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, 8 Misc. Rep. 311; 28 N. Y. Supp. 731.

There is no' evidence in this case that he either obtained a certificate or registered as required by law.

The judgment appealed from must, therefore, be affirmed, •. with costs.

Conlan, J., concurs.

Fitzsimons, J. (dissenting).

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 Founders' Co. v. Conner, 6 Misc. Rep. 391; 26 N. Y. Supp. 742. Besides, the act requiring master plumbers to be licensed prescribes the penalty and punishment, for 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 his business as plumber.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

Judgment affirmed, with costs.  