THOMAS J. MEADE, Respondent,
ARTHUR E. LAMARCHE, Appellant.
APPEAL by the defendant, Arthur E. Lamarche, from a judgment of the County Court of Clinton county in favor of the plaintiff, entered in the office of the clerk of said county on the 11th day of March, 1911, upon the report of a referee.
Patrick J. Tierney, for the appellant.
John E. Judge, for the respondent.
The plaintiff is a plumber carrying on his business in the city of Plattsburg and brings this action for services and materials furnished by him in that city to the defendant. The complaint did not allege that the plaintiff had obtained a certificate of competency from an examining board of plumbers of such city, or that he had registered his name and address at the office of its board of health, as prescribed by sections 45 and 46 of the General City Law (Consol. Laws, chap. 21; Laws of 1909, chap. 26). The defendant did not demur to the complaint or plead such defense in his answer, but at the close of the plaintiff's proofs a motion for nonsuit was made specifying specifically such ground.
It was stipulated upon the trial that the mayor of the city of Plattsburg had never appointed an examining board of plumbers for that city as required by section 40 of the General City Law, and that, therefore, no board existed from which the plaintiff could obtain a certificate of competency to carry on his business, and not having such certificate he could not register his name and address in the office of the board of health.
The learned referee before whom the action was tried held that because there was no board in existence before which the plaintiff could have an examination and obtain a certificate
he was excused from obtaining such certificate and from registering with the board of health and was relieved from the requirements of the law.
We think such conclusion was correct. By section 40 of the General City Law it is provided that the mayor of each city in the State shall appoint an examining board of plumbers for his city, consisting of five persons whose qualifications are specified. The mayor thus by law became a part of the machinery of the State through which examination of plumbers was to be had. The Legislature delegated certain powers to him, expecting that he would exercise them and thus realize and make effective its law enacted for the protection of the inhabitants of large communities in securing to them proper and healthful sanitation. It could not have been the intention of the Legislature to visit the penalties of the law upon plumbers in those cities where the mayor refused to exercise his function of appointing a board of examiners. The situation presented is not like that of the temporary disability or absence of the appointing or licensing power. In such case the law is in full force and the applicant must await his opportunity. In the present case the State through the default of the mayor never gave life to the law so far as the city of Plattsburg was concerned, because it was never made possible for plumbers in that city to comply with it. A citizen should not be made to suffer the penalties of a law which the State itself has made it impossible for him to obey. If the law be held to apply in the city of Plattsburg plumbers must close their shops and the inhabitants must be deprived of their services until such time as the mayor may see fit to appoint a board which can examine applicants so that they may register in the office of the board of health.
The plaintiff offered in evidence a certificate of competency obtained by him from the board of examiners in the city of New York when he was in business in that city, but it was properly rejected, because it availed him nothing and did not entitle him to register with the board of health of the city of Plattsburg.
There being no board of examiners, and it being impossible for plaintiff to obtain a certificate of competency, his position was in effect as ...