J. & J. G. Wallach Laundry System, Inc. v. Fortcher

116 Misc. 712

• Court: New York Supreme Court
• Decided: November 15, 1921
• Status: Published

Opinion

Hotchkiss, J.

The laundry business has been fruitful of actions similar to the present. Defendant was employed by plaintiff as a driver and solicitor and was assigned to a specific route. His services were such as permitted him to gain an intimate knowledge of plaintiff’s customers within the district assigned to him, and he covenanted that upon leaving the plaintiff’s employ to surrender to plaintiff a full list of its customers upon defendant’s route; that he would not solicit, directly or indirecly, similar work from any of the plaintiff’s customers, and that for a period of two years after the termination of his services with the plaintiff he would not, directly or indirectly, engage in the laundry business within a prescribed district — to wit, the route upon which he had served. This action is brought to enforce said covenant not to solicit plaintiff’s customers or to engage in the- laundry business, and by this motion plaintiff seeks an interlocutory injunction until the trial of the case. The term of defendant’s employment is not stated. He could have been discharged the day after his service began and still be under his agreement not to solicit plaintiff’s customers or engage in a competitive business on his former route for two years. But mutuality of obligation is apparently unnecessary for the enforcement of the negative covenants of an employee in a contract of employment. McCall Co. v. Wright, 198 N. Y. 143. Still, the reasonableness of such covenants is a condition of their recognition by a court of equity. Diamond Match Co. v. Roeber, 106 N. Y. 473; Morris v. Saxelby, post. If the restraining covenants be too broad, if divisible it has been held that the valid portion may be enforced. Thus, where the restraint covers an excess of territory (Smith’s Appeal, 113 Penn. St. 579; Trenton Potteries Co. v. Oliphant, 58 N. J. Eq. 507), or the number of occupations is too great. Bromley v. Smith, 1909, 2 K. B. 235. Divisibility of an entire contractual period of restraint would seem to be difficult, if not impossible. Recent English cases show a reluctance to enforce such contracts and have raised doubts as to the rule of severance. Attwood v. Lamont, 1920, 3 K. B. 571; Morris v. Saxelby, 1916, 1 A. C. 688; Goldsoll v. Goldman, 1914, 2 Ch. 603, 613; Mason v. Provident Clothing, etc., Co., 1913, A. C. 724. Although it cannot by any means be said that the law is settled (see Attwood v. Lamont, supra), I think the proof here of the reasonableness of the contractual period of restraint is ample to bring the case within Eastern N. Y. W. W. L. Co. v. Abrahams, 173 App. Div. 788; New York W. W. L. Co. v. Unger, 170 id. 761; Davies v. Racer, 72 Hun, 43. These cases and those cited in the opinions must, until there has been a different expression of the law by the Court of Appeals, be accepted as binding by courts of first instance.

Motion granted.