Opinion
November 23, 1965
Order, entered on October 11, 1965, granting injunction pendente lite, unanimously reversed on the law and the facts, with $30 costs and disbursements to defendant-appellant and the motion for injunction denied. Plaintiff seeks an injunction pendente lite in an action for a permanent injunction. Defendant is a former employee of the plaintiff. Employment was pursuant to a written contract containing a restrictive covenant. It is elementary that an injunction in advance of trial should not issue unless a clear right is shown both factually and legally ( Premier Laundry v. Klein, 273 App. Div. 946). The affidavits raise a clear issue as to whether defendant did solicit any of plaintiff's customers. Furthermore, while the temporary injunction sought appears to be within permissible limits, the covenant itself may not be. The question is whether it is broader than the legitimate interest sought to be protected ( Paramount Pad Co. v. Baumrind, 4 N.Y.2d 393). On this question — a mixed one of law and fact — the proof is not so free from doubt as to establish a clear right. Settle order on notice.
Concur — Breitel, J.P., Rabin, Valente, Stevens and Steuer, JJ.