162 A.D. 691 | N.Y. App. Div. | 1914
Present — Ingraham, P. J., McLaughlin, Laughlin, Scott and Hotchkiss, JJ.
The following is the opinion of Pendleton, J.:
This is a motion by plaintiff for judgment on the pleadings against both of the defendants, and proceeds on the contention that the denials of the allegations of the complaint are directed against immaterial matters only and that the separate defenses alleged in the answers do not state facts sufficient on their face to constitute a defense. The action is in the nature of an action in equity for specific performance, and is brought to enjoin the defendants from producing grand opera in the city of New York in violation of a covenant not to give grand opera in the cities of New York or Boston within a period of ten years from the date of the contract. The covenant in question forms part and parcel of a contract or contracts whereby the defendant Oscar Hammerstein sold his certain properties, business and good will in connection with the giving of grand opera. That courts of equity will by injunction enforce restrictive covenants given as an incident to the sale of property, business and good will within proper limitations as hereinafter pointed out, is too well settled to require the citation of authorities in its support. The complaint adequately sets forth the contract of sale and the covenants sought to be enforced. The defendants answered separately. Each sets up as a separate defense, first, that the contract in question was violative of the provisions of the statute of the United States entitled “An Act to protect trade and
See 26 U. S. Stat. at Large, 209, chap. 647.—[Rep.