Kidd v. Oakes — 39 Misc. 2d 645

Majority

p. 645

William C. Kidd et al., Appellants, v. John J. Oakes, Respondent.

Supreme Court, Appellate Term, First Department,

June 27, 1963.

Hawkins, Delafield <& Wood (Clarence Fried of counsel), for appellants. Gerald F. Egan for respondent.

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 ).

p. 646

The 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.

Cases cited

Kristt v. Whelan 4 A D 2d 195 N.Y. App. Div. 1957-06-25 p. 645
Kristt v. Whelan 5 N Y 2d 807 N.Y. 1958-11-13 p. 645
Pratt v. Short 79 N. Y. 437 N.Y. 1880-01-13 p. 645
John E. Rosasco Creameries, Inc. v. Cohen 276 N. Y. 274 N.Y. 1937-12-07 p. 645
Warner v. de Cuevas 186 Misc. 150 N.Y. Sup. Ct. 1945-12-07 p. 645