McCall Co. v. . Wright , 198 N.Y. 143 ( 1910 )

The question presented by this appeal is whether the plaintiff is entitled to maintain a suit in equity to restrain the defendant until January 1, 1915, from entering into or continuing in the service of certain specified corporations or any other rival company or concern engaged in the same general line of business as the plaintiff.

The controversy grows out of a contract made on January 2, 1909, between the plaintiff corporation and the defendant. By this contract the defendant, who was then employed by the plaintiff in its business of manufacturing and selling paper dress patterns, agreed to continue in such employment for a period of six years from January 1st, 1909, unless the employment should be sooner terminated by the plaintiff which was given the right and option to terminate the agreement at any time upon giving to the defendant not less than thirty days' notice of its intention so to do. The nature of the duties of the defendant was specified to be "such as shall be assigned to him from time to time during the term of said employment" by the plaintiff or its president. The defendant covenanted "to engage in no other occupation during said period and to use his best endeavors to promote the business and the business interests of the party of the first part [the plaintiff] and successfully and well to perform the several duties that shall be assigned to him by the party of the first part or its president while this contract shall be in force." On January 23, 1909, the defendant, without the permission of the plaintiff, abandoned its service and became the president of another corporation engaged in the business of manufacturing and selling paper dress patterns, which concern is a rival to the plaintiff.

The plaintiff presents a clear case of an inexcusable abandonment of the contract by the defendant, which undoubtedly renders him liable to an action at law for damages. In my opinion, however, it does not present such a case of irreparable injury as is necessary to maintain an equitable action to enforce the defendant's stipulation not to work for another. The facts are very similar to those in W.J. Johnston Co. v. Hunt (66 Hun, 504; affirmed on opinion below, 142 N.Y. 621). The opinion of Mr. Justice O'BRIEN at General Term in that case was adopted by this court as a correct statement of the law, and it was there held that in cases of this kind it must appear that the threatened injury is irreparable and that the services which the employee would transfer to a new employer are of a special, unique or extraordinary character. It is true that in the present complaint the defendant's qualifications are thus characterized; but this averment cannot broaden the specific allegations of the complaint and the language of the contract showing what the nature of the services really was. When we scrutinize these particulars it appears that the defendant acted and undertook to act as the general manager of the plaintiff's business immediately under the president, and, as in theJohnston Case (supra), while his services were undoubtedly valuable and their withdrawal was likely to result in some loss to the plaintiff, they were not so peculiar or distinctive as to be indispensable. This is made manifest by other allegations of the complaint in reference to previous occurrences between the plaintiff and the defendant. It appears that in 1908 the defendant was employed by the plaintiff corporation under a contract previously made similar to that which forms the basis of the present suit so far as the nature of his duties was concerned, and that the plaintiff, being dissatisfied with his conduct, discharged him from its employment in December of that year. It can hardly be reasonably contended that his breach of the succeeding contract has resulted in an irreparable injury, in view of the fact that the plaintiff of its own accord dismissed him while he was acting for it under a previous contract calling for services of precisely the same character.

For these reasons I think that the plaintiff's sole remedy is at law and that the present suit cannot be maintained. I, therefore, advise a reversal of the order of the Appellate Division and that the question certified be answered in the negative.

EDWARD T. BARTLETT, WERNER and CHASE, JJ., concur with HISCOCK, J.; CULLEN, Ch. J., and VANN, J., concur with WILLARD BARTLETT, J.

Order affirmed, etc.