74 A.D.2d 981 | N.Y. App. Div. | 1980
Appeal from an order of the Supreme Court at Special Term, entered July 23, 1979 in Albany County, which granted plaintiff’s motion for the joinder of the above actions for trial and denied defendant’s cross motion for an order dismissing the second action. In 1961, the parties entered into a partnership under the name of "The Quality Bulb and Garden Center” for the purpose of the sale of lawn and garden equipment and supplies and the sale of plants. In 1967, the parties and a third person formed a corporation named Lansco, Inc., for the purpose of engaging in the landscape service business, and the plaintiff became employed by Lansco, Inc. On November 2, 1967, the parties entered into an agreement for the dissolution of the partnership, whereby defendant was to purchase the interest of plaintiff for the sum of $46,000. Plaintiff was paid $21,000 at the time of the dissolution. This agreement also provided that plaintiff would not "directly or indirectly, carry on or be engaged in, either as principal, clerk or agent, singly or with others, in the business of selling and distributing garden supplies, garden tools and equipment, buying and selling landscape items, or to engage generally in the business of a garden supply house or any other business of similar nature related thereto, within a radius of fifty (50) miles of the present business office * * * for a period of five (5) years from the date of this agreement”. On December 30, 1967, the parties entered into an agreement modifying the dissolution agreement to provide that $25,000 of the purchase price be paid pursuant to a bond, secured by a mortgage, requiring five annual $5,000 installments. The partnership was dissolved as of December 30, 1967, and plaintiff continued to be an employee of Lansco, Inc., until February, 1969 when he commenced his own landscaping business under the name of Don Christman, Inc. Defendant made the first payment of $5,000 on the bond and mortgage on January 15, 1969, but refused to make further payments, alleging that the covenant not to compete had been breached by plaintiff. Plaintiff then commenced an action on the bond to recover the unpaid balance of $20,000. Defendant answered and counterclaimed, seeking damages for the breach of the covenant not to compete and for failure of consideration. After a trial by the court, without a jury, judgment was awarded to plaintiff and defendant’s counterclaim was dismissed. Defendant appealed to this court which affirmed the judgment by a vote of 3 to 2. The dissenters voted to reverse the judgment dismissing the counterclaim and order a new trial (Christman v Starr, 39 AD2d 431). On appeal to the Court of Appeals, the order of this court was reversed "for the reasons stated in the dissenting opinion at the Appellate Division” and the case was remitted to the Supreme Court, Albany County, for assessment of defendant’s damages under his counterclaim (Christman v Starr, 33 NY2d 885, 887). In making this determination, the Court of Appeals apparently relied on the conclusion of "The dissent at the Appellate Division * * * that plaintiff’s operation was within the intended terms of the covenant, and that defendant was not barred by waiver or estoppel from asserting a breach thereof.” (33 NY2d 885, 887.) Plaintiff then commenced a second action against defendant seeking an accounting of the partnership’s assets and reimbursement for the payment