145 N.Y.S. 772 | N.Y. App. Div. | 1914
Appeal from a final judgment enjoining defendant, for a period of seventeen years, from divulging certain trade secrets and selling certain dental supplies without plaintiff’s permission., The defendant patented a process whereby porcelain
Under this contract the defendant only agreed not to enter into competition or disclose the trade secrets in case a corporation was formed. The agreement expressly recites that a corporation was to be formed and should be known as the “Welden Dental Specialty Company.” There is no provision in the contract which in any way bound the defendant not to compete in business with the firm or to preserve to it the trade secrets in any way. The finding of the trial court to the contrary is not sustained by the evidence. It is true that a short time after this contract was signed the parties filed a certificate, pursuant to section 440 of the- Penal Law, in the office of the county clerk, that they were doing business as partners under the name of the Welden Dental Specialty Company. This certificate in no way affected the contract between them, but merely .gave notice to the public that business was being carried on by them as partners under that name. The agreement fixed no time for the duration of the partnership and for that reason it was terminable at will. The defendant, therefore, was acting within his legal rights when he terminated it. The partnership, being terminated, could not thereafter carry on business, and if it could not, obviously the defendant could not enter into competition with it.
I am also of the opinion that the judgment is erroneous, for the reason that the plaintiff has no title or interest in the contract in question. It appears that a judgment was obtained against the firm, and an execution having been issued thereon and returned unsatisfied, proceedings supplementary to execution were instituted, and it there appearing that the firm had some property, including the contract in question, a receiver was appointed, who sold at public auction all the partnership assets, including its good will and contract rights. The judgment creditor purchased the assets at the receiver’s sale and he acquired whatever rights the partners may have had under the contract'sued on. This right, whatever it may be,-has since been assigned to and is owned by the defendant, and the plaintiff has no interest therein.
The judgment appealed from is, therefore, reversed, with
Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.
Judgment reversed, with costs, and complaint dismissed on the merits, with costs. Order to be settled on notice.