Opinion
July 15, 1907.
Felix H. Levy [ Philip M. Bromberg with him on the brief], for the appellant.
Joseph H. Hayes, for the respondent.
This is an appeal by plaintiff from an order denying its motion for an injunction pendente lite. The defendant entered into an agreement with the plaintiff by which he was employed as a driver and collector at the rate of thirteen dollars per week. The plaintiff agreed to give him one week's notice in case his services were no longer required, and defendant agreed to perform his services honestly and give one week's notice in case he wished to sever his connection with the company and deposited fifty dollars as a guaranty of good faith and honesty while in its employ.
The contract, which was in writing, contained this further provision: "The party of the first part further agrees, in consideration of this employment, that he will not, either in his own behalf or in behalf of any one else, solicit orders for or serve milk or cream to any of the customers belonging to the party of the second part for the term of thirty-six months from the date of his leaving the employ of the party of the second part."
After he had been at work from November 14, 1905, to April 15, 1907, he was discharged. He did not receive the one week's notice provided for, but upon the settlement of his accounts was tendered pay for that week, which he refused. The Special Term refused to enforce the covenant and grant the injunction upon the ground that by the discharge without the notice provided for in the contract the plaintiff breached the contract and had, therefore, no rights remaining under the said contract.
It seems to me that the covenant upon which this action is based was an independent covenant and was entered into as a consideration of the employment and that the injury and wrong which it was sought to guard against was within the contemplation of the parties at the time they entered into the contract, and was not dependable upon the manner of the defendant's leaving the employ of the plaintiff, but upon the fact of his leaving.
In Mutual Milk Cream Company v. Prigge ( 112 App. Div. 652), in considering the precise covenant sued on in the case at bar, this court said: "The terms imposed were not unusual or unreasonable. It was a perfectly proper condition for the plaintiff to insist upon as a condition precedent to the employment or as a condition of continuance thereof, that its employee should not, after becoming acquainted with its customers, leave its employ and solicit business for another in competition with it," and sustained an injunction in the action, although the defendant in that case at the time of entering into the contract and at the time the suit was instituted was an infant and had continued in the employment about three months.
As this court held that the injunction was properly issued in that case, it seems proper here where the defendant is an adult, and had continued in the employment for a period of seventeen months with the opportunity to become acquainted with the clientele of the plaintiff, which opportunity he would not have had unless he had agreed to make the covenant which is the basis of this action.
The failure to give the week's notice of the discharge is of no importance, because of the tender of the week's wages. The defendant was put in a better position by the tender of the week's wages without serving than he would have been by the notice and payment after the week's service. The thing attempted to be guarded against was the use of the knowledge of the plaintiff's customers, obtained by reason of the employment, after the employment had ceased, against the company. This covenant, therefore, depended not upon the manner of the cessation of the employment, but upon the fact thereof.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs to the appellant.
INGRAHAM, McLAUGHLIN, HOUGHTON and LAMBERT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.