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William Messer Co. v. Rothstein

Supreme Court of New York, Appellate Division

December 18, 1908

WILLIAM MESSER CO.
v.
ROTHSTEIN et al.

Jacob Manheim (Harry A. Gordon, on the brief), for appellants.

Max Monfried (Aaron A. Feinberg, of counsel), for respondent.

Argued before PATTERSON, P. J., and INGRAHAM, CLARKE, McLAUGHLIN, and HOUGHTON, JJ.

CLARKE, J.

The action is to foreclose a mechanic's lien. Plaintiff had judgment. The plaintiff is a domestic corporation.

The complaint alleges that it entered into an agreement with the defendants, whereby the plaintiff agreed to do for the said defendants the plumbing and gas fitting and furnish the materials therefor in certain premises owned by the defendants. The answer denies that any sum was due to plaintiff, and asked an affirmative judgment for damages for delay and negligence in performance.

[113 N.Y.S. 773] The appellants make the point for the first time, and in this court, that the plaintiff alleged and proved no cause of action, in that the contract upon which the suit was brought and the work which the plaintiff performed were prohibited by the plumbing laws embodied in chapter 327, p. 690, of the Laws of 1900, and that no cause of action could be predicated upon the performance by the plaintiff, a corporation, of plumbing work and gas fitting and the furnishing of the material in connection with the same.

Section 45 of said act provides that:

" A person desiring or intending to conduct the trade, business or calling of a plumber or of plumbing in a city of this state as employing or master plumber shall be required to submit to an examination before such examining board of plumbers as to his experience and qualifications for such trade, business or calling, and it shall not be lawful in any city of this state for a 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."

Section 46 provides for the registration of every employing or master plumber holding a certificate of competency; and section 55 provides that any person violating any of the provisions of the article shall be guilty of a misdemeanor.

The appellant claims that as a corporation cannot be examined it cannot obtain a certificate of competency, and as it cannot hold a certificate of competency it cannot be registered, and therefore it is unlawful for a corporation to conduct the trade, business, or calling of a plumber as employing or master plumber in a city of this state, and so it cannot recover for plumbing work done.

It appeared in evidence that William Messer was the secretary and treasurer of the plaintiff company; that he had been in business as a plumber about 30 years; that he did all the plumbing and gas fitting throughout the three houses according to the contract; that he had obtained the plumbing certificates for these houses from the building department, which were delivered to the defendants, and that the building department and the tenement house department had issued their certificates that they had no objections to the work.

Upon this evidence we must hold that Messer, who did the plumbing work, was a duly certificated and registered plumber, and that if the point had been raised he could have shown it conclusively. An objection to proof cannot be raised for the first time upon appeal in a case where it is apparent that if timely objection had been made upon the trial the proof could have been supplied. The appellant must be held to have waived any objection to its sufficiency. Sears v. Tobey, 153 N.Y. 381, 47 N.E. 800.

If, however, the appellant is right in his contention that as matter of law a corporation cannot engage in the plumbing business, no matter how many certificated and registered plumbers it may have as its officers or in its employ who actually do the business of plumbing, then, although not raised specifically on the trial, the point is before us upon the exception to the denial of the motion to dismiss the complaint on the ground that the plaintiff has not made out a cause of action. Because, if the contention is sound, such objection could not be obviated [113 N.Y.S. ...


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