Jong v. B. G. Behrman Co.

Full title: JACOB DE JONG, Appellant, v . B.G. BEHRMAN COMPANY and Others, Respondents

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 1, 1911

148 App. Div. 37 (N.Y. App. Div. 1911)

131 N.Y.S. 1083

Opinion

December 1, 1911.

William H. Chorosh, for the appellant.

Arnold Lichtig, for the respondents.

SCOTT, J.:

Appeal from an interlocutory judgment overruling demurrers to a separate defense.

The action is for damages for inducing plaintiff's employees, and especially one Suzanne Partridge, to break their contracts with plaintiff. The parties are business rivals. The complaint alleged that plaintiff had had in his employ for some years an expert superintendent named Suzanne Partridge; that on January 5, 1911, plaintiff entered into a contract with said Partridge to remain in his employ for one year from January 1, 1911, to December 31, 1911. That defendants knowing this fact wrongfully and maliciously, with the intent and for the purpose of injuring plaintiff in his business, wrongfully and maliciously induced said Partridge to break her agreement with plaintiff and leave his employ and to enter the employ of said Behrman Company. It is also alleged: "That the said defendants and each of them, following the acts heretofore hereinbefore complained of did, thereafter and before the commencement of this action, wrongfully and maliciously entice various employees of the plaintiff to leave the employ of the plaintiff, and induced such employees to break their agreement with the plaintiff for the hire of their services, which acts were committed against the will of the plaintiff and without his consent, the defendants and each of them well knowing that it was necessary and essential for the plaintiff in the conduct of his business to retain and keep such employees." There is also an allegation that defendants "wrongfully and surreptitiously" obtained samples and designs of plaintiff's work for the purpose of copying them, but as this allegation obviously states no separate and independent cause of action, it may be disregarded. The gravamen of the complaint is that defendants enticed away plaintiff's servants, thereby causing them to break their contracts with plaintiff.

The separate defense, to which the demurrer was interposed, alleges that, prior to December 31, 1910, Suzanne Partridge voluntarily left plaintiff's employ, and thereafter, and on January 2, 1911, entered into a contract for her services with defendant company. As the date of this alleged employment was three days earlier than that of the contract alleged to have been made with plaintiff, the separate defense is good in so far as the complaint is founded upon the enticing away of Suzanne Partridge. But it offers no defense to so much of plaintiff's pleaded cause of action as relates to the enticing away of other employees, and as the separate defense is pleaded as a complete one, and not as a partial one, it is insufficient if the complaint states a cause of action, based on the enticing away of the other employees. This brings us to the question whether or not this action will lie for damages for inducing a servant to break his contract for services with his master. This is a question which has been widely discussed, and upon which there has been much difference of opinion, but, strangely enough, it has seldom arisen in this State so far as appears from the reported cases. The plaintiff relies upon the well-known and often cited case of Lumley v. Gye (2 El. Bl. 246). In that case one Wagner, a lyric artist, had contracted with plaintiff to sing at his theatre, and not elsewhere, during a certain time. Defendant, without using fraudulent, or otherwise illegal means, persuaded her to break her contract. It was held, not without a strong dissent by COLERIDGE, J., that an action would lie for damages. It is safe to say that that case has never been fully accepted in this country, and even in England its authority has been much limited, if not actually weakened. ( Allen v. Flood, L.R. [1898] App. Cas. 1.) In so far as it was based upon the ancient statutes of England respecting laborers and servants it is clear that it has no application to conditions existing in this State. ( National Protective Association v. Cumming, 170 N.Y. 315.) It has been held in some jurisdictions, and strongly denied in others, that the law gives a remedy for interference with contracts for service, which it would not give under like circumstances for interference with other contracts. In our opinion, however, no such distinction can properly be made, nor is sanctioned by the closer reasoning. A contract for services is like any other contract in which the parties assume mutual obligations one to the other. In case of a breach by one the other has his action for damages. If a third party is to be held liable for having induced the breach it must be because he has been guilty of some wrongdoing, amounting to a tort, whereby he has deprived the aggrieved party of a valuable thing, to wit, the contract. It seems to be well settled as to contracts generally — and we see no reason why the same rule should not apply to contracts for service — that interference by a stranger is actionable only if he has used fraudulent or otherwise wrongful means to induce one party to break the contract. That such interference is actionable is settled. ( Rice v. Manley, 66 N.Y. 82.) It is significant that in the present case the defendants are charged with the adoption of no illegal or fraudulent means for enticing away plaintiff's employees, and, except in the case of Suzanne Partridge, no allegation is made that any employee so enticed away was under contract for any definite term. It is true that the complaint is plentifully besprinkled with allegations that defendants did certain things "wrongfully and maliciously," but these amount to nothing more than the pleader's conclusions from unalleged facts. In the absence of any sufficient allegation of the use by defendants of fraudulent or unlawful means to entice away plaintiff's employees, we are of opinion that the complaint fails to state facts constituting a cause of action.

The interlocutory judgment appealed from is, therefore, affirmed, with costs, with leave to plaintiff to withdraw demurrer and amend his complaint within twenty days upon payment of costs in this court and in the court below.

INGRAHAM, P.J., CLARKE, MILLER and DOWLING, JJ., concurred.

Judgment affirmed, with costs, with leave to plaintiff to withdraw demurrer and amend complaint on payment of costs in this court and in the court below.