Heatmor, Inc. v. Bang Oil Corp.

256 A.D. 997, 10 N.Y.S.2d 736, 1939 N.Y. App. Div. LEXIS 5822

Opinion

In an action in equity to enforce a negative covenant relating to non-solicitation of business in certain circumstances, which covenant was contained in a contract in writing between two corporations, only one of which, a defendant, is a party to this action, order granting motion of defendants to dismiss the complaint upon the ground that it does not state facts sufficient to constitute a cause of action, and permitting plaintiffs to plead over on terms, affirmed, with ten dollars costs and disbursements. There are two parties plaintiff. Neither has any right to enforce the negative covenant. The corporate plaintiff has no such right because it is not a party to the contract and the same was not made for its benefit. The individual plaintiff, who is the sole stockholder of the corporate plaintiff, by virtue of that status clearly has no such right of enforcement. His other status as assignee of the rights of a party to the contract does not accord to him, the right of enforcement, for the contract involved a relation of personal credit and confidence and rights thereunder were not assignable by one party without the consent of the other. (Paige v. Faure, 229 N. Y. 114; Nassau Hotel Co. v. Barnett & Barse Corp., 162 App. Div. 381; affd., 212 N. Y. 568.) Lazansky, P. J., Hagarty, Johnston, Adel and Taylor, JJ., concur.