General Explosive Co. v. Hough

63 Misc. 377, 116 N.Y.S. 1114

• Court: New York Supreme Court
• Decided: May 15, 1909
• Status: Published

Opinion

Dayton, J.

The preliminary contract securing defendant’s" skilled knowledge, services and inventions for five years was for the avowed purpose of forming plaintiff corporation. That contract was carried out to the extent of an expenditure by plaintiff of upwards of $50,000, and defendant received his stipulated compensation and more for a considerable period. An explosion occurred at plaintiff’s works, utterly destroying its property. Defendant thereupon accepted a proposition from a rival company in Canada, by whom he is now employed.

This action-is brought for an injunction and damages for defendant’s alleged breach of contract before its expiration, and this motion is made for an order of arrest under section 550, Code of Civil Procedure, a-modern form of the writ of ne exeat. Defendant claims that subsequently to said explosion plaintiff sold its remaining property, abandoned its business, and gave consent to hjg obtaining other employment. He further says that he has not given and will not give to his present employers the benefit of any of his inventions covered by his agreements with plaintiff. This is answered by showing that plaintiff has ever been and still is readj, willing and able to utilize and pay for plaintiff’s services, without which it cannot transact any business, and by explicitly denying any waiver of the agreement on defendant’s part.

It seems to me that defendant is at fault. Plaintiff’s misfortune afforded no ground for his abandonment of a contract, of which he was an essential factor and which plaintiff has at all times stood and now stands ready to perform on its part. On the record plaintiff is entitled to the relief asked.

Motion granted.