Davies v. Racer

25 N.Y.S. 293 | N.Y. Sup. Ct. | 1893

YAK BRUNT, P. J.

There seems to be little to add to the opinion rendered in the court below, but it may be necessary to notice one or two points' which have been urged upon this appeal. It appears that on the 1st. of June, 1887, the plaintiffs, who are engaged in the business of forwarding agents and customhouse brokers, entered into an agreement with the defendant, whereby said firm employed the defendant, as clerk, to receive, influence, and procure orders and goods from shippers in Kew York city and elsewhere, and to perform other duties, in consideration of a salary therein expressed. In and by said agreement the said defendant agreed not to engage in the city of Kew York, or within 50 miles thereof, either directly or indirectly, in a similar business to that carried on by the plaintiffs, or to interfere with any of the plaintiffs’ customers, directly or indirectly, for the space of 12 months after the expiration of the agreement; Said agreement was continued in existence until on or about the 29th of December, 1892, • when the defendant voluntarily left the plaintiffs’ employment, and engaged as a clerk with a firm in Kew York doing business similar to that of the plaintiffs, and, it is alleged, interfered with the customers of the plaintiffs by systematic solicitation of .their business on behalf of said firm; and that such solicitation was in open violation of defendant’s said agreement. There was evidence tending to show the existence of this state of facts. But it is urged upon the part of the appellant that there was no evidence that the plaintiffs have suffered or will suffer such great or irreparable injury as will warrant the granting of this injunction. It is undoubtedly true that the evidence in this regard is slight, but there certainly is evidence from which the conclusion might be drawn that the plaintiffs may suffer injury from the actions of the defendant. It appears beyond contradiction that he is soliciting custom from those who have been accustomed to deal with the plaintiffs, and that some of these customers have ceased dealing with the plaintiffs, although they allege they would have ceased dealing with the plaintiffs even though the defendant had not solicited the change. It is naturally difficult to establish the effect of the mental operations which have brought about the change in the action of these customers, but it is apparent that there has been a plain and willful violation upon the part of the defendant of the covenants contained in his agreement; and it requires but slight evidence of injury to justify the court in restraining such acts, it being apparent that it is impossible to calculate what may be the results of such action.

It is also urged that the covenant is in restraint of trade, and was not supported by a good consideration, and unreasonable in view of the circumstances disclosed, and therefore void. As to the agreement being in restraint of trade, it seems to be difficult to support any such proposition in view of the principles enunciated* by the courts of appeals in the case of Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. Rep. 419, where a very much broader contract was enforced. As to the want of consideration, the fact of the employment was sufficient consideration. It enabled the defendant to become familiar with the customers and the trade of the plaintiffs, and they had a right to protect themselves by such a covenant against such knowledge being used to their disadvantage. As to the policy of the law being against the restraint of clerks, mechanics, and apprentices from pursuing their profession or employment in any particular place, it seems to be sufficient to say that no rule laid down in this state has been called to our attention which in any way militates against the validity or propriety of such an agreement as forms the subject-matter of this action. We think, therefore, that the order should be affirmed, with $10 costs and disbursements. All concur.