Opinion
April 12, 1948.
Appeal from Supreme Court, New York County.
In our opinion the order appealed from should be reversed, with $20 costs and disbursements to the appellants, and the motion denied because the moving affidavits fail to set forth a sufficiently clear case to warrant the granting of the temporary injunction in this action. (See Clark Paper Mfg. Co. v. Stenacher, 236 N.Y. 312; Levy v. Cosmos, 221 App. Div. 533. ) The only solicitation disclosed in the record was through a letter circulated by a trade association to all of its members, who apparently were openly engaged in a type of business commonly known to use or require laundry service. There is no proof that this method of solicitation was intended for the purpose of enticing away the plaintiff's customers.
In reversing the order appealed from we do not intend to indicate that if upon the trial evidence is produced showing a breach of the restrictive covenant by any improper solicitation of customers, the plaintiff may not be entitled to adequate protection.
Glennon, Dore and Callahan, J., concur; Peck, P.J., and Cohn, J., dissent and vote to affirm.
Order reversed, with $20 costs and disbursements to the appellants, and motion denied. [See post, p. 996.]