Amsterdam v. Marmor

125 Misc. 865, 212 N.Y.S. 300, 1925 N.Y. Misc. LEXIS 1113

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 10, 1925
• Status: Published

Opinion

Per Curiam:

We think that defendant violated the covenant not to “in any manner whatsoever become interested, directly or indirectly, in any business, etc.,” by assisting his brother-in-law to establish a business next door, by extending to him a credit for merchandise, and guaranteeing accounts for him, thus securing credit which had been denied, and actually advising the choice of merchandise and going with him and picking out merchandise. Such a covenant must be construed as a promise to refrain from injuring the good will of the business which defendant sold to plaintiff. Plaintiff’s measure of damage, however, is narrow. It is confined to the difference in value between the store with the competition and its value without it. This must be shown by expert testimony. The price that plaintiff obtained on a resale is not competent. As a foundation for the expert testimony evidence of decreased sales after the competition, if reasonably connected with the competition, may be adduced, but such evidence alone will not warrant a definite amount of money damage. As the case was dismissed without reference to the question of damage we order a new trial.

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Guy, Bijur and Mullan, JJ.