Opinion
September 29, 1952.
Defendant appeals from an order which enjoins him from engaging, directly or indirectly, in the paint and hardware business during the pendency of an action brought by the plaintiff, the transferee of the party to whom defendant sold a similar business with a covenant not to engage or be interested in such business. Order modified on the law and the facts by striking out the ordering paragraph and substituting therefor: "ORDERED that the defendant be and he hereby is enjoined during the pendency of this action from engaging, directly or indirectly as owner or employee, or from having an interest as stockholder or director or officer, in a business similar to that sold and transferred by him and one Reisner to Milford Spitzer, within a radius of five square blocks from 42-16 Broadway, Long Island City, New York." As so modified the order is affirmed, without costs. Special Term could grant a temporary injunction restraining the defendant in accordance with the covenant given to his vendee. ( Ginsberg v. Samuels, 240 App. Div. 982.) The restraint, however, should have been limited to the area and activity specified in the covenant. Carswell, Acting P.J., Johnston, Wenzel, MacCrate and Schmidt, JJ., concur.