Johnston v. Dahlgren

• Decision Date: 26 March 1901
• Citation: 59 N.E. 987,166 N.Y. 354
• Parties: JOHNSTON et al. v. DAHLGREN.
• Court: New York Court of Appeals Court of Appeals

166 N.Y. 354

59 N.E. 987

JOHNSTON et al.

v.DAHLGREN.

Court of Appeals of New York.

March 26, 1901.

Appeal from supreme court, appellate division, Second department.

Action by James R. Johnston and others against Elizabeth Drexel Dahlgren, executrix of John Vinton Dahlgren, to enforce a mechanic's lien. From a judgment of the appellate division (62 N. Y. Supp. 1115) unanimously affirming a judgment for plaintiffs entered on report of referee, defendant appeals. Affirmed.

Abram I. Elkus and Edward C. James, for appellant.

George C. Lay and Thomas P. Wickes, for respondents.

GRAY, J.

The unanimous affirmance of the judgment recovered by the plaintiffs deprives this court of jurisdiction to review the questions of fact in the case. We are required to presume that the evidence supports the facts upon which the referee based his decision. It is evident that the referee considered that he was making the concise or ‘short decision,’ as it is now commonly called, permitted by section 1022 of the Code; and I think it should be regarded as such, in view of the characterization given to it by himself. But it is not, in my opinion, very material how the form of the report is regarded, although if in the general or ‘short’ form, it would be allowed the effect of a verdict, with all the presumptions in its support, in its present form the decision is quite full enough for the purpose of supporting the judgment, and there was no other findings requested. I entertain no doubt but that, whatever questions of fact are involved in the decision below, they are conclusively settled, and beyond our review.

The first question of law which is presented is as to the effect of the plaintiffs' failure to comply with the provisions of chapter 602 of the Laws of 1892, which, in section 6, after the requirements as to registration, state that ‘after the first day of March, 1893, it shall not be lawful for any person to engage in, or carry on the trade, business or calling of an employing or master plumber in any of the cities of this state unless his name and address shall have been registered as above provided.’ I think there can be no doubt but that the effect of the violation of the statute was to preclude them from enforcing a recovery upon their contracts, while in default. If it was made unlawful for them to carry on their business without having previously registered their names and addresses with the board of health, they certainly were disabled from compelling payment for work performed by them in violation of the statute.

In the next place, it is argued for the appellant pellant that this was an entire contract between the plaintiffs and the defendant, and that, being tainted by the illegality referred to above, no recovery could be had by the plaintiffs with respect to the items of work other than their own work, and which they had, under the defendant's instructions, employed other mechanics to perform, and for which they had paid. The plaintiffs' employment by the defendant was oral, and whether, with respect to all the kinds of work which were required to be done in the defendant's house, the contract with the plaintiffs was entire in its nature, or whether, with respect to work other than plumbing, and to be done by other mechanics, it was severable, was a question of fact to be determined upon the evidence. It depended upon the intention of the parties, and, the contract not being in writing, that was to be discovered by a consideration of...