¶1This action is brought for work, labor and services rendered by the plaintiff to defendant as a plumber.
¶2On 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.
¶3*211This appeal is from the judgment entered upon such dismissal.
¶4Chapter 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.
¶5Chapter 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.
¶6The 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.
¶7At 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.
¶8It 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.
¶9There is no' evidence in this case that he either obtained a certificate or registered as required by law.
¶10The judgment appealed from must, therefore, be affirmed, •. with costs.
¶11Conlan, J., concurs.
¶12I cannot agree with the foregoing opinion.
¶13*212The objection that plaintiff was not a licensed plumber should have been taken by demurrer or answer.
¶14• 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.
¶15It does not follow that he cannot, in a civil action, recover the value of services rendered or materials furnished in his business as plumber.
¶16The judgment should be reversed and a new trial ordered, with costs to appellant to abide event.
¶17Judgment affirmed, with costs.