Kidd v. Oakes

Appellate Terms of the Supreme Court of New York

Kidd v. Oakes

39 Misc. 2d 645, 241 N.Y.S.2d 403, 1963 N.Y. Misc. LEXIS 1861

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 27, 1963

StatusPublished

Cited by6 cases

This text of 39 Misc. 2d 645 (Kidd v. Oakes) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kidd v. Oakes, 39 Misc. 2d 645, 241 N.Y.S.2d 403, 1963 N.Y. Misc. LEXIS 1861 (N.Y. Ct. App. 1963).

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Opinion

Per Curiam.

The question raised by this appeal is whether plaintiffs may recover the benefit paid to defendant pursuant to a profit-sharing plan. While the contention is that the contract results in unlawful restraint, yet an employee may legally undertake a restriction of his liberty to earn his living if he, by the contract, may be relieved of the restriction by forfeiting a contract right or by adhering to the provisions of the contract (Kristt v. Whelan, 4 A D 2d 195, affd. 5 N Y 2d 807; Liddcoat v. Kenosha City Bd. of Educ., 17 Wis. 2d 400; Pratt v. Short, 79 N. Y. 437). The agreement may not be enforced to obtain affirmative relief in enforcement thereof but the sums paid in the circumstances here may not be retained (Rosasco Creameries v. Cohen, 276 N. Y. 274; Warner v. De Cuevas, 186 Misc. 150).

[646]*646The judgment should be reversed, with $30 costs, and judgment directed for plaintiffs as prayed for in the complaint, with costs.

Concur — G-old, J. P., Hoestadter, and Oapozzoli, JJ. Judgment reversed, etc.

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Per Curiam.

The question raised by this appeal is whether plaintiffs may recover the benefit paid to defendant pursuant to a profit-sharing plan. While the contention is that the contract results in unlawful restraint, yet an employee may legally undertake a restriction of his liberty to earn his living if he, by the contract, may be relieved of the restriction by forfeiting a contract right or by adhering to the provisions of the contract (Kristt v. Whelan, 4 A D 2d 195, affd. 5 N Y 2d 807; Liddcoat v. Kenosha City Bd. of Educ., 17 Wis. 2d 400; Pratt v. Short, 79 N. Y. 437). The agreement may not be enforced to obtain affirmative relief in enforcement thereof but the sums paid in the circumstances here may not be retained (Rosasco Creameries v. Cohen, 276 N. Y. 274; Warner v. De Cuevas, 186 Misc. 150).

[646]*646The judgment should be reversed, with $30 costs, and judgment directed for plaintiffs as prayed for in the complaint, with costs.

Concur — G-old, J. P., Hoestadter, and Oapozzoli, JJ. Judgment reversed, etc.

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Bluebook (online)

39 Misc. 2d 645, 241 N.Y.S.2d 403, 1963 N.Y. Misc. LEXIS 1861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kidd-v-oakes-nyappterm-1963.

Opinion

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