Babcock v. Clear — 43 N.Y. St. Rep. 426

Majority

p. 426

George Babcock, App’lt, v. John R. H. Clear, Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

Covenant—Not to engage in business.

On the sale of his interest in a business to plaintiff defendant entered into a covenant not to engage in. the same business directly Or indirectly, as principal or agent, within a certain radius. He thereaiter engaged in delivering goods for a rival dealer,- and solicited custom from some of his old customers. Held, a breach of the covenant, and that calling himself a laborer did not affect the question.

Appeal from judgment in favor of defendant, entered upon dismissal of complaint.

This action, was brought to restrain the defendant from, directly or indirectly, carrying on the ice business in Tarrytown, or North Tarrytown, or their vicinity, within a radius of ten miles of the premises formerly occupied by plaintiff and defendant while co-partners, and for such damages as the plaintiff, had suffered.

The plaintiff and defendant had formerly been co-partners in the ice business, with ice houses and a principal place of business,. on Sheldon avenue, about a mile from the principal business street of Tarrytown.

On October 27, 1888, plaintiff bought defendant’s interest in the co-partnership and as a part of the consideration therefor the defendant covenanted with the plaintiff as follows :

“ And the said John R. H. Clear covenants and agrees to, and with the said George Babcock, that he will not at any time hereafter engage directly or indirectly, or concern himself in carrying on or conducting the ice business, either as principal or agent, within ten miles of the premises heretofore occupied by the parties hereto, in the town of Greenburgh.”

The defendant thereafter engaged as the agent of one Ward Wheeler, another ice dealer in Tarrytown, and, as such agent, solicited the customers of appellant (formerly customers of the co-partnership) to take ice from said Wheeler, offering to undersell appellant, and delivered ice for said Wheeler.

E. T. Lovatt, for app’lt; W. F. Purdy, for resp’t.

The defendant for a good consideration covenanted' with the plaintiff not to “ engage directly or indirectly or concern himself in carrying on or conducting the ice business, either as principal or agent, within ten miles,” etc., of a certain place.

He is now and for a long time has been engaged in riding upon an ice cart delivering ice and doing such other parts of the ice

p. 427

business as he is directed to do by a rival ice dealer of the plaintiff, within the limits specified in the contract.

It appears that he has solicited some of his old customers and others to buy ice of his present employers at prices below those of the plaintiff.

We think that although this is a covenant that must be strictly adhered to, that the acts of the defendant clearly fall within the spirit and terms of it; merely calling himself a laborer does not signify to take the case out of his covenant.

He was undoubtedly hired because he was acquainted with his former customers and could prevail upon them to patronize his present employer.

To pretend to be "a laborer was a mere cover to engage in the ice business in a way which would injure the plaintiff in the most effectual way.

If his work had been cutting ice or loading it or taking care of horses, or even keeping the books, so long as he did not solicit custom as agent of his employer, it might not violate his agreement, but to engage in selling and delivering even as agent was clearly a breach of his covenant.

Judgment reversed, with costs.

Barnard, P. J., concurs ; - Dykman, J., not sitting.