Gottesman v. Barer

The complaint was framed "for a balance alleged to be due for work, labor and services. The evidence introduced to establish the plaintiff’s case showed that as a master plumber he performed the work in question between January 12 and February 6, 1914, in the improvement of the defendants’ real property in the borough of Brooklyn, city of New York.

Sections 415 and 416 of the Greater New York Charter, as added thereto in 1913 (Laws of 1913, chap 754), provide that once in each year every master plumber shall register his name and address at the office of the bureau of buildings in the borough of the city in which he performs work, and thereupon he shall be entitled 'to receive a certificate of registration if he holds a certificate from the examining board of plumbers of said city and is a citizen of the United States; that it shall not be lawful for any person to engage in, per*442form or carry on the trade or business or calling of employing or master plumber in the city of New York unless such person shall have been registered as therein provided.

This statute is a substantial re-enactment of chapter 803 of the Laws of 1896, and it was held in Schnaier & Co. v. Grigsby, 132 App. Div. 854, an action which construed the 1896 statute, that such registration was a condition precedent to the right to engage in the business of master plumber, and must be pleaded and proven as a part of the plaintiff’s affirmative case in an action to recover for plumbing work. This decision was affirmed by the Court of Appeals (199 N. Y. 577) upon the opinion of Mr. Justice Scott in the Appellate Division.

The complaint in this action was not demurrable because, although no allegation was made of registration in pursuance of the statute, it -did not appear on the face of the pleading that the work, labor and services for which recovery was sought were those of a master plumber; but when the plaintiff’s evidence showed that he had made a contract as a master plumber and that the work under such contract, for which he sought a recovery, was performed by him in the borough of Brooklyn, it was incumbent upon him to go further and prove registration in pursuance of the statute.

By reason of the plaintiff’s failure to make such proof no cause of action was established, and the complaint should have been dismissed. Schnaier & Co. v. Grigsby, supra. And see Wood & Selick v. Ball, 190 N. Y. 217; Johnston v. Dahlgren, 166 id. 354.

The plaintiff’s testimony shows however that in June, 1912, he receiver a license from the examining board of plumbers (see Greater N. Y. Charter, §§ 1573, 1574, added by Laws of 1913, chap. 755); that on May *4439, 1913, the board revoked his license for fraud in passing the examination upon which the certificate was issued and for making false statements in his application; that in July, 1913, upon the plaintiff’s application, the board declined to issue a certificate to him because of his fraud in the examination; but that on April 22, 1914, several months after the performance of the work in question, the board, as shown by the minutes of its meeting on that day, took the following action: “ The following named persons having submitted to a new examination in March, and the board having, gone over their examination papers and having found them to be qualified to engage in business as master plumbers, it hereby authorizes the issuance of their certificates and rescinds its prior action in refusing to issue the same, Morris Grottesman, 117 Columbia Street, Manhattan,” etc.

Not only therefore did the plaintiff fail to prove the essential element of registration in his effort to establish a cause of action, but his own testimony showed affirmatively that between May 13, 1913, and April, 1914, he had no plumber’s license, so that he had no license at the time he made the contract and did the work in question.

It is clear that the so-called rescission of the action of the board, mentioned in the minutes of its meeting of April 22, 1914, when read in connection with the context, was really no rescission; it was merely a change of action by the board based on the fact that since the prior refusal in July, 1913, to reissue a certificate the plaintiff had passed a new examination.

It is claimed by the appellants that some of the work done by the plaintiff was not plumbing work, and therefore the statute is inapplicable. To this contention it is a sufficient answer that the contract sought to be enforced was an entire contract, so that *444if void in part it is void altogether. See Johnston v. Dahlgren, 166 N. Y. 354; Rose v. Truax, 21 Barb. 361; Saratoga County Bank v. King, 44 N. Y. 387; Meguire v. Corwin, 101 U. S. 108, 112.

It follows that the judgment appealed from should be reversed, with costs, and the complaint dismissed, with costs.

Pendleton and Shearn, JJ., concur.

Judgment reversed, with costs, and complaint dismissed, with costs.