Opinion
February 15, 1925.
J.B. Boudin, for the plaintiffs.
Wilber, Norman Kahn, for the defendant.
Prior to December 30, 1924, the parties to this action, in copartnership, conducted a store at No. 554 Fifth avenue, which is the second store from the southwest corner of Fifteenth street. Upon the date mentioned the partnership was dissolved and the defendant sold his interest to the plaintiffs and agreed not to engage in a similar business "within a radius of five (5) square blocks from the location" of the store sold during a designated period. Thereafter, and on the 3d day of January, 1925, a bill of sale was delivered, which contained the same covenant except that the word "measured" was inserted after the word "blocks." The defendant has since opened a store for the transaction of the same line of business at No. 652 Fifth avenue, which is on the southwest corner of Nineteenth street and Fifth avenue. In other words, the defendant is in the fifth square block north of the square block in which the plaintiffs' store is located. Defendant submits proof that he is beyond the "measured" distance of a quarter of a mile; that twenty city blocks constitute a mile, and, therefore, he is more than five blocks away, measured from plaintiffs' store. The agreement, however, was made with reference to the existing physical conditions. The intention was that the defendant should not engage in a similar line of business within the limits of any square block, i.e., the territory defined by streets surrounding it, distant less than five from any part of the square block in which the plaintiffs' store is located. Motion granted, with $10 costs. Undertaking, $1,500.