Opinion
November 9, 1917.
Abraham P. Wilkes, for the appellant.
I.T. Flatto, for the respondent.
The temporary injunction restrains the defendant from engaging in any way in any refrigerating or warehouse business, pending the final determination of this action, within a radius of twenty-five miles of the City Hall. The defendant was formerly engaged in that business and sold out to the plaintiff, stipulating not to engage in that business within twenty-five miles of the City Hall for a period of five years. Thereafter the defendant accepted a position as managing clerk for the Standard Cold Storage Company at Nos. 48-50 Jay street, Manhattan. This action is brought to enjoin his acting for the Standard Cold Storage Company, by reason of his covenant.
We are of opinion that this injunction should not have been granted, for the reason that the plaintiff has abandoned this business. Not only has he abandoned it, but his only claim to possible injury lies in his allegation that he "intends to resume business * * * as soon as it is conveniently possible." If he were now engaged in the business thus purchased, or even if he should resume the business, notwithstanding a temporary abandonment, he would apparently have the right to enjoin the defendant from acting contrary to his covenant. In view of his abandonment of the business, however, no harm can come to him by the act of the defendant, in engaging therein, and this is not a case at least for the granting of a temporary injunction pending the trial of the action.
The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
CLARKE, P.J., SCOTT, DAVIS and SHEARN, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.