99 A.D. 231 | N.Y. App. Div. | 1904
The action is based upon a contract, and although not directly for specific performance, yet this is sought indirectly by an injunction restraining a breach of the contract by the defendant. The plaintiff is engaged as a sales agent in marketing paper specialties, and it has a branch agency and agents in the city of New York and in various other places throughout the United States. The defendant is engaged in manufacturing paper specialties in the city of New York. On the 15th day of March, 1904, a contract in writing was made between the defendant and F. M. Kimbark in the name of the plaintiff, which purports to contain the following covenants and agreements on the part of the respective parties, to wit: On the part of the defendant that he appointed the plaintiff his exclusive selling agent in the United States for the sale of “ paper specialties ” then manufactured or thereafter to be manufactured by him or his successors or assigns; that he would furnish “ with all reasonable despatch, upon the orders of the said Envelope Go., any goods manufactured by him, his successors or assigns ; ” that the prices of the goods so to be furnished by the defendant should be “ at all times at
The contract is annexed to the complaint and made a part thereof. The rights of the parties, therefore, are to be determined by the contract, rather than by the general allegations of the complaint concerning the effect thereof. The complaint alleges that the plaintiff has fully performed the contract on its part, but that the defendant has “ solicited orders from and made sales to persons, firms and corporations other than the plaintiff, of said paper specialties of his manufacture, without the consent of the plaintiff, and is still continuing so to do, thereby depriving the plaintiff of its just profits and injuring the business of the plaintiff, by which the plaintiff alleges that it will suffer damage in the sum of Two thousand dollars ($2,000); ” and judgment is demanded perpetually enjoining the defendant during the term of the contract from selling or endeavoring to sell and from delivering “ any of the goods of his manufacture to any person, firm or corporation other than the plaintiff, or from otherwise injuring in any way the business of the plaintiff,” and for a temporary injunction to like effect and for the damages sustained and costs.
None of the allegations of the complaint is stated to be made on information and belief. The verification is made by said Kimbark. It is made in the usual form, except that he says that he is the manager of the plaintiff and that the reason the verification is not made ■ by it is that it is a corporation. The motion for the injunction was brought on an order to show cause and was made on the complaint and three affidavits. The defendant opposed the granting of the motion solely on the ground of the insufficiency of the moving papers. The affidavits, in addition to the formal requirements, show a single sale by a former soliciting agent of the plaintiff after his discharge of 3,000 “ chop-holders ” to the Hotel Navarre in the city of New York for one dollar per thousand; that the bill therefor was rendered by the defendant to the hotel and paid, and
For the reasons stated, therefore, the order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the injunction granted, with ten dollars costs.
Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion to vacate injunction granted, with ten dollars costs.