Norman Ellis Corp. v. Lippus

13 Misc. 2d 432, 176 N.Y.S.2d 5, 1955 N.Y. Misc. LEXIS 2330

Opinion

Howard T. Hogan, J.

Plaintiff, in an action for an injunction restraining defendant from competing in the business of a telephone answering service, seeks an injunction pendente lite. Defendant cross-moves for the dismissal of the complaint on the ground that plaintiff, assignee of a telephone answering service, acquired no enforcible rights under a bilateral contract for personal services entered into between plaintiff’s assignor and defendant Lippus. The authorities cited by defendant in support of this proposition are to the effect that the assignee of a contract calling for personal services may not demand the performance of those personal services by one who, while agreeing to work for the assignor, the original contracting party, is not willing to perform personal services for a stranger to the original contract.

Such is not the case presented by this action. Plaintiff seeks not to compel defendant Lippus to work for him, but to restrain her from competing with his business, revealing a secret list of customers, soliciting his customers, etc., all of which she agreed to refrain from doing as a condition of her employment by plaintiff’s assignor. Such agreement, the court holds, was just as assignable as any asset of the business.

Accordingly, defendant’s motion to dismiss the complaint is denied, and she is enjoined from committing the acts complained of during the pendency of this action. Plaintiff is directed to notice the cause for the first available term of this court after issue has been joined. Bond $250.

Settle order on notice.