7 A.D.2d 783 | N.Y. App. Div. | 1958
Appeal by the defendant-appellant from a judgment of the City Court, City of Albany, in the amount of $2,000 arising as the result of a contract after a trial without a jury. The contract, which apparently was prepared by the plaintiff or its representatives, relates to installation of music service to the defendant’s bar. The gravamen of the complaint was that defendant breached the agreement by discontinuing the service. Defendant admitted the agreement but denied a breach thereof, and alleged as a separate defense that the agreement was merely a license which was terminable at will. By its terms the agreement could have been terminated at any time by the defendant giving 90 days’ notice in writing, plus the cost of installation, and a sum equal to $15 multiplied by the total number of weeks remaining, but otherwise there is nothing in the agreement which would lead to the conclusion that it was terminable at will. On appeal, and apparently before the trial court, defendant raised an issue of duress and coercion in the execution of the agreement. This issue was not embraced in the pleadings but in any event the trial court found no duress or coercion in the execution of the contract, and the evidence sustains his finding. In a well-considered opinion the trial court correctly rejected the defense that the plaintiff had no cause of action for a breach of the agreement because it was merely a license (United Merchants Realty & Improvement Co. v. American Billposting Co., 71 Misc. 457; Schusterman v. C & F Caterers, 192 Misc. 564). Defendant also raised on appeal the issue that the agreement contained an illegal restrictive covenant and was therefore unenforcible. Although not within the pleadings the trial court found this defense to be without validity on the ground that the restraint was not unreasonable in time, scope or severity. This ruling was correct in our opinion, and in accord with the authority which deals with restrictive covenants in connection with business deals as distinguished