■ I concur in the result, upon the ground that the question of the right of the plaintiff to recover was sharply and squarely raised at the commencement of the trial.' It became the duty of the plaintiff to support its cause of action by proof that, although' -a corporation engaged in the business of plumbing, it had capacity to sue. It is claimed that subdivision 3 of section 141 of the Building Code of the city of Hew York provides legal authority, and that the necessary acts there prescribed had been performed. -
In Messer Co. v. Rothstein (129 App. Div. 215), which involved the same .question as the case at bar, the point of want of capacity to sue was raised for the first time on appeal in this court. "Under such circumstances it was our duty, in support of the judgment, to consider evidence which might have been- supplied if timely objection had been made. Ho such case is here. The Building Code is an ordinance, and must be offered in evidence. The point having been raised at trial, the plaintiff may not ask us to .supply evidence which it was its duty to furnish. I do-not agree to the proposition that corporations duly organized under our laws-cannot in any event engage in plumbing in the city of Hew York., But, for the reason stated, I agree that the order of. the Appellate Term should be'affirmed. -
Determination affirmed and judgment ordered for defendant, with costs., '