Hackenheimer v. Kurtzmann , 192 N.Y.S. 181 ( 1921 )

Kruse, P. J. (concurring):

I concur with Clark, J., for reversal. If there had been but a slight infraction of the restrictive convenant such as a failure through inadvertence to deliver mail matter to the plaintiffs as the defendants were required to do by the restrictive covenant, or even if only the new corporation had been organized preparatory to doing business after the expiration of the restrictive period, I should agree to affirm, but organizing the corporation, using the name “ Kurtzmann,” followed by the distribution of advertising matter and actually doing business, was, it seems to me, such a breach in the essential particulars contemplated by the restrictive covenant as to make the provisions for the stipulated damages effective. The primary purpose of the restrictive covenant was to assure to the plaintiffs the good will, including the name of the Kurtzmann piano business.

The language of the covenant is that Christian Kurtzmann within the period of five years, and the other parties to the contract within a period of ten years, from the date of the contract, will not directly or indirectly interfere with the good will of the corporation by the use of the name “ Kurtzmann ” in connection with the manufacture of pianos or piano supplies. That is precisely, as it seems to me, what was done and was the essential thing which the Kurtzmanns agreed not to do. Even though Christian himself may not have violated the covenant within five years, his father, Louis, I think, did violate the covenant, and for such violation, by the express terms of the contract, Christian is made liable.

I, therefore, vote for reversal.