I concur with Mr. Justice Rumsey in the reversal of this judgment, but I do not concur in the conclusion that a plumber who has not complied with the provisions of chapter 602 of the Law's of 1892 to do plumbing work cannot, after the contract has been performed and the work furnished under it, recover from the other party to the contrac t for the work and materials that have been actually furnished. This act in question is entitled “ An act to secure the registration of plumbers and the supervision of plumbing and drainage in the cities of the State of New York,” and the act provides a method by which those wishing to engage in the business of plumbing in the said cities shall be examined by a board to be appointed by the mayor in each of the cities of the State, and to issue a certificate of competency to all such persons wrho shall have submitted to and passed a satisfactory examination before such board. By section 5 of the act it is provided that “ Any person desiring or intending to conduct the trade, business or calling of a plumber or of plumbing in any of the cities of this State as employing or master plumber, shall be required to submit to an examination before such board of examiners as to liis experience and qualifications in such trade, business or calling; and after the first day of March, eighteen hundred and ninety-three, it shall not be lawful in any city of this State for any 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.” By section 6 of the act it is provided that“ after the first day of March, *209eighteen hundred and ninety-three, 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 provided in the section. By section 13 of the act it is provided : “ Any person violating any of the provisions of this act or any rules and regulations of the board of health, or of the board of examiners in any city regulating the plumbing and drainage of buildings of such city, shall be deemed guilty of a misdemeanor, and, upon conviction, if a master plumber, shall, in addition, forfeit any certificate of competency or registration which he may hold under the provisions thereof.” Prior to the passage of this act it "was legal for any one to conduct the business of a plumber without any examination or registration. By this act it was first provided that it shall not be lawful for any person in any city of this State to conduct the trade, business or calling of a plumber unless he shall have first obtained a certificate of competency from the board of the city in which he conducts, or proposes to conduct, • such business ; and a penalty is provided for a violation of the provisions of the act by making a person violating it guilty of a misdemeanor, and also forfeiture of the certificate and registration under the act. Here the statute first provides that an act which before had been legal shall be illegal, and provides a penalty for a violation of its provisions. Upon the familiar principle that where a statute declares an act which was before legal to be illegal, and provides a penalty for a violation of the statute, that penalty is exclusive, this act does not provide that a contract made by a person carrying on such business which is there declared to be illegal should, in addition to the penalty prescribed by the act, forfeit to any one with whom he made the contract, the value of the labor and materials that lie had furnished to such person under the contract; and I do not think that any such penalty follows upon a violation' of the act. Such agreements, while executory in their character, might be incapable of enforcement, but when the contract has been executed and the work and material actually provided, one of the parties thus receiving the benefit of the labor and materials of the other, the mere fact that it is illegal for one of the parties to do the work that he did. and for which a penalty is imposed by the statute making it *210illegal, is not a defense to an action to recover for the value of the work and materials furnished under such a contract. For the- reasons here stated, I concur in the reversal of the judgment.
Judgment reversed and new trial ordered before another referee,with costs to appellants to abide event.