I. PHOTO ENGRAVING AS WITHIN DONNELLY

ANTI-TRUST ACT

Photo engraving has been held not to be an "article or commodity in common use" within the meaning of the Donnelly AntiTrust Law (Gen. Business Law, 340, 341).

PEOPLE V. EPSTEAN, 102 Misc. 476 (Feb. 1918), abstract. Defendants, who were charged with a violation of the act mentioned, were persons, firms and corporations, engaged in selling photo engravings used for the purpose of printing illustrations and pictures. These persons, firms and corporations represented a majority of the business. An indictment charged that they arranged and recommended that the Photo Engravers' Board of Trade should adopt a certain scale of prices to be charged for photo engraving. Nearly all of the latter were members of the Photo Engravers' Union. The Board of Trade made an agreement with the union to regulate the terms and conditions of the employment. Prior to this movement the photo engraving business was in a chaotic condition, much of the business being disturbed by strikes. After the agreement peace and harmony between employer and employee and the defendants reigned. Dismissing the indictment the court held that the evidence before the grand jury was insufficient to sustain the contention that photo engraving was an "article in common use," and, therefore, that there was no violation of the law.

[191]

II. RESTRAINING EMPLOYEE FROM GOING INTO

BUSINESS FOR SELF

GILBERT V. WILMER, 102 Misc. 388 (Feb. 1918), abstract.

The defendant, a window cleaner, signed a contract whereby he was to receive $20.00 per week. He agreed that for one year from the date of leaving his employer after the termination of the contract, he would not go into the window cleaning business, directly or indirectly for himself, in the city of Syracuse. The defendant left his employment before the termination of the contract and solicited business among the customers of his former employer. The court was asked to issue an injunction to restrain him from violating his contract. The court held, however, that the provisions thereof were too inequitable to justify its enforce

ment.

Ross, J., who wrote the opinion, said:

"It seems to me that a reasonable interpretation of this provision means just what it says, that he should not go into business in the usual acceptance of investing capital, or employing others; that he should not start an opposition business, but to construe this provision to mean that he should not work with his hands to support his family and himself is so unreasonable as has been heretofore stated, that it should not receive the aid of a court of equity."

[1921

III. INDUCING EMPLOYEE TO BREAK CONTRACT

Plaintiff corporation was engaged in designing, manufacturing and selling at wholesale ladies' gowns and wearing apparel. Defendant, likewise, was engaged in a similar business. Plaintiff's designer who had acquired great 'skill and displayed great taste in her work, and who had organized and incorporated plaintiff corporation, later becoming a member of its board of directors, entered into a five-year contract with plaintiff, whereby she was to devote all her time and energy to the business and was to receive $75 a week for her services. After she had served the plaintiff for a period of from fifteen to eighteen months, the defendant, by offering larger wages, and, as alleged, for the purpose of injuring the plaintiff, procured her to work for the defendant corporation. Alleging these facts, and that plaintiff had induced and persuaded her to break her contract, plaintiff asked $25,000 damages. Defendant demurred to the complaint upon the ground that it did not constitute a cause of action. Plaintiff asked that the demurrer be overruled and for judgment on the pleading. This motion was granted. However, on appeal to the Appellate Division the judgment was reversed and the demurrer sustained, and plaintiff was given twenty days to amend the complaint. (Posner Co. v. Jackson, 166 App. Div. 920). The plaintiff failed to amend and judgment was entered dismissing the complaint. An appeal to the Appellate Division resulted in an affirmance (Posner Co. v. Jackson, 170 App. Div. 972). On appeal from the judgment, the Court of Appeals, reversing the same, rendered the following opinion which is given in full:

(1.) POSNER Co. v. JACKSON, 223 N. Y. 325 (Apr. 23, 1918). CHASE, J.: The sufficiency of the complaint is challenged. In considering this appeal we must take its allegations as true. The plaintiff's right to recover thereon, if at all depends,

1. Upon its right to the employee's services pursuant to the express contract for a definite period of time.

2. The defendants' knowledge of the contract and of the same being valuable, important and essential to the plaintiff in maintaining its business as the defendants' competitor.

3. The defendants' willful and malicious intent and purpose to injure the plaintiff by depriving it of such employee's services as provided in the contract.

The employee contracted to "Devote the whole of her time, attention and energy to the performance of her said duties," and that she would not "until the expiration of such contract, or any extended term thereof, either directly or indirectly, engage in or become associated in the business of manufacturing or selling any kind of ladies' garments, apparel or other similar articles, either as principal, agent, or employee."

The employee's failure to perform her contract so far as appears was inexcusable. She is liable at law for the damages occasioned by her failure to perform her contract. As the services to be performed by her under the contract were special, unique and extraordinary, if the remedy at law is inadequate an action could have been sustained in equity to restrain her from the violation of the negative covenants to which she became bound in connection with her employment. (McCall Co. v. Wright, 198 N. Y. 143; Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229.)

The faithful performance of the covenants by the employee was of vital importance to the employer. It is apparent from the allegations of the complaint that if the contract is not performed serious injury to the plaintiff must necessarily result therefrom. When the defendants induced the employee to break her contract with the plaintiff "It was well known to them that the plaintiff had been organized" by the employee and "that she was one of the principal persons engaged in its management, that she had loaned to its enterprise her name, and she was then a director and president thereof, and in the employ of the plaintiff, and that she was a party to a written contract of employment for her exclusive services for a period of years to come."

In persuading the employee to break the contract with the plaintiff the defendant Jackson acted for himself and for the defendant corporation. He intended " to injure the plaintiff in its business," and entice such employee from the plaintiff and persuade her to break her contract with the plaintiff for the purpose of "depriving it of her services and of securing such services for a competitor and of thereby injuring this (plaintiff) corporation.”

It is alleged that in pursuance of a wrongful, corrupt and malicious purpose the defendants induced the employee to abandon and break her aforesaid contract and in violation of the same to enter into the employ of the defendant E. A. Jackson, Inc., a competing business."

Such contract as that described is a property right. An interference with such a property right by which it is lost to an employer is a wrong in morals and when without justification or excuse may be an actionable tort for which damages can be recovered against the wrongdoer.

If a person knowingly and intentionally interfere with the express contract rights of an employer with his employee and the purpose and intent of such interference is to injure such employer and it does result in his injury, an action will be sustained to recover damages therefor. (Bossert v. Dhuy, 221 N. Y. 342; National Protective Association v. Cumming, 170 N. Y. 315; Warschauser v. Brooklyn Furniture Co., 159 App. Div. 81; Lumley v. Gye, 2 El. & Bl. 216; Quinn v. Leathem, 1901 A. C. 495; 27 Eng. Ruling Cases, 66 and note; 1 British Ruling Cases, 197 and note; Angle v. Chic., St. P., M. & O. R. Co., 151 U. S. 1, 13; Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373; Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 252; Eagle Glass & Mfg. Co. v. Rowe, 245 U. S. 275; Lewis v. Bloede, 202 Fed. Rep. 7,

15; Walker v. Cronin, 107 Mass. 555; Moran v. Dunphy, 177 Mass. 485; Globe & Rutgers Fire Ins. Co. v. Fireman's Fund Ins. Co., 97 Miss. 148; Thacker Coal & Coke Co. v. Burke, 59 W. Va. 253; Doremus v. Hennessy, 176 Ill. 608; Gore v. Condon, 87 Md. 368; Bixby v. Dunlap, 56 N. H. 456; Martens v. Reilly, 109 Wis. 464; Rice v. Manley, 66 N. Y. 82; Aldridge v. Stuyvesant, 1 Hall, 210; Johnson Harvester Co. v. Meinhardt, 9 Abb. [N. C.] 393; Brennan v. United Hatters, 73 N. J. L. 729; Flaccus v. Smith, 199 Penn. St. 128.)

The right of recovery is not dependent upon statute. Supra; Hitchman Coal & Coke Co. v. Mitchell, supra.)

(Walker v. Cronin,

In the case of Ashley v. Dixon (48 N. Y. 430), on which the respondent in part relies, the decision was in fact based upon a failure of evidence to establish the plaintiff's contention, as is stated by the court in the first two paragraphs of the opinion. The further discussion of law was quite unnecessary to the decision. The case is also to be distinguished from the case under consideration in that it does not include the element of bad faith and willful intention to injure the plaintiff. So in case of De Jong v. Behrman Co. (148 App. Div. 37) there was no specific allegation of purpose and intent to injure the plaintiff.

It is neither necessary nor desirable in this case to discuss the civil liability of a person who interferes with the contract rights of another except as they are alleged in the complaint in this action. Such liability is specially dependent upon the facts found in each case and we expressly restrict our opinion to the facts upon which it is based.

The judgment of the Appellate Division should be reversed and that of Special Term affirmed, with costs in this court and in the Appellate Division.

(2.) LAMB V. CHENEY & SON, 227 N. Y. 418 (1920), abstract.

An action was brought by plaintiff against the defendant to recover damages alleged to have been sustained by plaintiff because of a breach of contract of hiring caused by. the defendant who induced plaintiff's employee to terminate his contract. The facts were as follows: Plaintiff entered into a contract with one B, by the terms of which the latter, in consideration of certain wages and the occupancy of a dwelling house, was to work for the plaintiff for one year. After about nine months, without plaintiff's consent, B terminated his contract and vacated the house. Defendant had induced this breach of contract after written notice from plaintiff that B's contract did not expire until a certain date. Affirming a judgment overruling a demurrer to the complaint for insufficiency of facts to constitute a cause of action, the court following Posner v. Jackson Co., supra, said: "Upon reason and authority, therefore, I am of the opinion that the facts set out in the complaint state a good cause of action. Such facts show an unwarranted interference with the plaintiff's contract with Bul