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1893, and numerous leases were thereupon made. A lease of Phantom Island was given to Jerome Lapham. Prior to June 6, 1893, the club applied for a lease of the island in question. The commission granted the request and fixed the rent at the sum of $150 per year. On August 1, 1893, it was modified, and fixed at the sum of $75 per year. Three signs, marked "State Land, Glen Island," were erected that year. The leases to Jerome Lapham and to the club were reported to the Legislature in January, 1894. At some time prior to July 29, 1895, the club levied an assessment of $10 upon each member as his share of the rental. B. F. Lapham and Orange Ferris paid. On that date the plan of leasing the island was given up, and said assessments were refunded.

On July 29, 1895, a minute was entered in the minute book to the effect that it was decided injudicious to further consider the project of an enlargement of the house or of a new one, because the commission did not approve. At that meeting a resolution was passed requiring every member who desired to withdraw from the club to offer his interest to surviving members first. At the annual meeting held April 7, 1899, a resolution was passed regulating the use of the cottage. At the annual meeting held July 3 and 4, 1903, the matter of necessary repairs to dock and cottage was considered and referred to a committee, and at the annual meeting held July 2, 1904, an extra assessment of $2 was levied to pay the cost of building a new dock. At the annual meeting held July 3, 1905, B. F. Lapham and Mortimer Lapham were appointed to make necessary repairs to the cottage. On July 4, 1906, Mortimer Lapham was authorized to make repairs at the expense of those who were willing to share. On July 8, 1907, Mortimer Lapham wrote to H. W. Fox, state superintendent of the forest commission, asking leave to make some improvements to the cottage, and Mr. Fox answered on the next day declining to give such leave.

These are some of the facts, and clearly show without further details that defendants' claim cannot be sustained, and that plaintiff is entitled to judgment.

Judgment accordingly.

(108 Misc. Rep. 680)

EASTMAN KODAK CO. v. WARREN et al. *
(Supreme Court, Special Term, Monroe County. July 26, 1919.)

1. INJUNCTION

(Syllabus by the Court.)

136(1) - PENDENTE LITE FOR ENTICING SERVANT TO LEAVE FOR HIGHER WAGES DENIED.

An injunction pendente lite will not be granted to restrain the solicitation of the employés of a competitor, where the only inducements were higher wages, better conditions, and increased opportunities of advancement, and the employés were not under a contract for any definite period of employment, and no fraudulent or unlawful means were used for that purpose.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes *Order reversed 189 App. Div. 556, 179 N. Y. Supp. 325.

(178 Ν.Υ.S.)

2. INJUNCTION 136(3)-TO ENFORCE CONTRACT NOT TO ENTER COMPETI

TOR'S EMPLOY DENIED.

An injunction pendente lite will not be granted to enforce a negative covenant not to enter the employ of a competitor within the United States, except Alaska, during a period of two years after the employment shall cease, where it is not necessary to the protection of the covenantee, or reasonable and equitable under the facts of the case.

3. INJUNCTION 136(3)-PENDENTE LITE TO ENFORCE CONTRACT NOT TO ENTER COMPETITOR'S EMPLOY DENIED WHERE PLAINTIFF HAD MONOPOLY.

An injunction pendente lite will not be granted to enforce such a negative covenant not to enter the employ of a competitor, where the covenantee has a substantial monopoly of the production of motion picture raw film stock, the term of employment has expired, and the occupation of the employé is that of an emulsion coater, of which the covenantee has many others in its employ and can readily secure a substitute.

4. INJUNCTION 136(2) - GRANTED PENDENTE LITE AS TO TRADE SECRETS.

An injunction pendente lite will be granted to restrain the disclosure of secrets of manufacture, although the negative covenant of employment in the contract of employment will not be enforced, pending the aetermination of the action.

(Additional Syllabus by Editorial Staff.)

5. INJUNCTION 171-CONCLUSIONS OF LAW IN COMPLAINT DISREGARDED IN MOTION TO VACATE TEMPORARY INJUNCTION.

Conclusions of law in complaint will not be considered on motion to vacate temporary injunction granted ex parte.

6. INJUNCTION 60-WHEN COVENANT NOT TO WORK FOR COMPETITOR AFTER LEAVING EMPLOY ENFORCEABLE.

Covenant of employé, employed from week to week, not to work for competitor for certain period after leaving employer's service, will be enforced by enjoining employé from working for competitor, where employer cannot secure a substitute and has no adequate remedy; but, where a substitute can be obtained, employer does not need an injunction, since he can secure adequate relief by way of damages.

7. INJUNCTION 56-DISCLOSURE OF TRADE SECRETS IN CONFIDENTIAL EMPLOYMENT ENJOINED.

Equity will restrain a party from making disclosures of secrets communicated to him in a confidential employment, whether the secrets be trade secrets, or secrets of title, or any other secrets of the party important to his interest.

Suit for injunction by the Eastman Kodak Company against Harry A. Warren and another. On motion on notice and affidavits to vacate a temporary injunction granted ex parte. Temporary injunction modified.

Ingraham, Sheehan & Moran, of New York City (George L. Ingraham, of New York City, of counsel), for the motion.

Hubbell, Taylor, Goodwin & Moser, of Rochester (W. S. Hubbell, of Rochester, of counsel), opposed.

RODENBECK, J. This action is brought for an injunction restraining the defendant, Powers Film Products, Incorporated, among other things, from soliciting any of the employés of the plaintiff, and particularly from employing the defendant Warren, a former employé of the plaintiff, and restraining the defendant Warren from working for the defendant company, and from disclosing any of plain

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

tiff's secrets of manufacture. The controversy relates especially to the manufacture of motion picture film raw stock, used by producers of motion pictures. The plaintiff is engaged in the manufacture of this stock for the trade generally, while the defendant company is manufacturing it for picture producing companies interested in its corporation. The plaintiff is the largest manufacturer of raw film stock in the world, and since 1914 has made practically all of the raw film stock used in this country, and much of that which was used abroad. The defendant company claims in its prospectus that the plaintiff sold approximately 750,000,000 feet of such raw stock a year, and that the greater portion of its annual profits of $14,500,000 came from this source. So extensive had the plaintiff's business in photographic supplies become that it was declared by the federal courts to be an illegal monopoly under the Sherman Anti-Trust Law (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. §§ 8820-8823, 8827-8830]). United States v. Eastman Kodak Co. (D. C.) 226 Fed. 62; Id. (D. C.) 230 Fed. 522.

The defendant company claims that it was organized by persons interested in the picture producing end of the motion picture business, and that its output is all used by companies with which the president of the defendant company is connected; that prior to the European War these corporations imported large quantities of motion picture film raw stock from Europe, paying for this and other raw stock as high as $75,000 a week; and that after the outbreak of the war the supply from abroad was entirely cut off and that the defendant company was organized to supply the needs of these companies. The defendant company is occupying a plant formerly owned by the Sensitized Products Company, another company which sought to produce raw film stock in the city of Rochester, and the coating machine used by the defendant company is the same one formerly used by the Sensitized Products Company. The defendant company, it is claimed by the plaintiff, among other things, is using illegal methods to secure plaintiff's employés, and has employed the defendant Warren, and that the defendant Warren is in possession of secrets of manufacture which he should be restrained from disclosing.

The defendant company claims the right to obtain its help from any source by any lawful means; that the coating of film is not a secret process, but is well known; that the defendant Warren has none of plaintiff's secrets of trade, has disclosed none, and that the effort of the plaintiff to secure an injunction in this action is directed toward preserving a monopoly, by unlawfully attempting to restrict the employment of its help after the termination of their employment. It attacks as unlawful the provision in defendant Warren's contract with plaintiff, made October 29, 1915, under which he agreed that, for a period of two years after leaving the employ of the plaintiff, he would not engage or be employed, within the United States, except Alaska, in any photographic business, and as tending to create a servitude of employment and perpetuate what the federal courts have condemned.

A temporary injunction was granted ex parte with the issuance of the summons, and this is a motion, upon notice and affidavits, to vacate the same.

(178 Ν.Υ.Σ.)

[1, 5] The plaintiff has not made out a case for an injunction against the defendant company. The allegations of fact set forth in the complaint, stripping the complaint of its conclusions of law, which are not to be considered on this motion (De Jong v. Behrman Co., 148 App. Div. 37, 131 N. Y. Supp. 1083), do not show that the defendant company, with respect to soliciting employés of plaintiff, did anything that it did not have the legal right to do. There is no legal restraint upon the use of lawful means to secure help from any source. These means consist of offers of higher wages, improved conditions, and better prospects of advancement, and any restraint in this respect would seriously interfere with the rights of employers and employés alike, and seriously affect the development of new enterprises and the growth and well-being of society. It is a matter of common knowledge that these means are used every day, and any restraint by the courts would interfere with the natural law of supply and demand.

The allegations of fact in the affidavits submitted by the plaintiff as to the conduct of the defendant company in relation to soliciting plaintiff's employés describe nothing that is unlawful, and these allegations and those in the complaint are not strengthened by any characterization of them by the plaintiff as unwarranted or unlawful, or as having been committed with any unlawful design or intention. Warren was not under contract for a definite period, being employed from week to week, and had the right to quit whenever he desired to do so. When he left the plaintiff's factory, he was not guilty of any breach of his contract. There is no allegation in the complaint or in the affidavits that the other employés claimed to have been approached were employed for a definite period. The plaintiff seeks to hold these employés to their negative covenants and otherwise, and yet has given them no definite period of employment, except from week to week. The defendant Warren says that he applied to the defendant company for work, and was not solicited. No relief will be granted for alleged enticement of help, where the employé is not under a definite period of employment (Posner Co. v. Jackson, 223 N. Y. 325, 331, 119 Ν. Ε. 573), and even then it must appear that the means used were fraudulent or otherwise wrongful, amounting to a tort (De Jong v. Behrman Co., supra). The right to solicit help of another employer is one of which undoubtedly the plaintiff has availed itself in the past, and, if not fairly and liberally enforced by the courts, would create a servitude of employment that would be intolerable and would soon lead to serious consequences.

The claim to a temporary injunction restraining the defendant company from using any of the trade secrets of plaintiff, or disclosing any communicated to it by defendant Warren, is equally unfounded, as there is no allegation that there has been any such use or disclosure; but, on the contrary, the allegations on the part of the defendants are that they know no such secrets and that none have been disclosed. Το entitle plaintiff to such an injunction against the defendant company, it must at least allege, if not show by substantial facts, that secrets of manufacture which have been learned have actually been disclosed. In the original complaint it was not even alleged that the defendant Warren had learned any of plaintiff's secrets of manufacture, but in the amended complaint this omission is supplied. The defendant company contends that the work in which Warren was engaged, that of coating film, is done by a machine, and is a simple and not a secret process, and this is borne out by the statements of Warren himself. Under the complaint, and the allegations in the affidavits, the plaintiff is not entitled to a temporary injunction restraining the defendant company from soliciting plaintiff's employés as prayed for, or from using or disclosing alleged secrets of manufacture, since it does not appear that any were imparted to it.

178 N.Y.S.-2

[2] The injunction against the defendant Warren's working for the defendant company is not sustained by the proofs submitted, and should be eliminated from the restraining order. The claim of plaintiff is based upon the defendant Warren's contract of employment. The one made December 28, 1911, contained no clause prohibiting his employment after the termination of his contract, but that made October 29, 1915, provides, as stated, that he will not work within the United States, except Alaska, for any manufacturer of photographic supplies within two years after leaving plaintiff's employ, and that he will not reveal any of plaintiff's secrets of manufacture. The twoyear limitation was undoubtedly designed to preserve with more certainty plaintiff's secrets of manufacture, but it also serves to debar the defendant Warren from using the skill and experience which he acquired in his employment, and which are not covered by the prohibition against revealing secrets of manufacture. The defendant Warren was employed by the plaintiff for a period of about ten years, and by the clause in the contract referred to he is prohibited for two years from earning a livelihood in his chosen occupation, except in Alaska or abroad. It is no answer to the harshness of this provision to say that he can work at something else. Employés such as he cannot easily shift from one occupation to another, and such a provision operates to keep employés bound hand and foot to their employers, so that they cannot better their occupational circumstances, and is for that reason a serious restraint upon employment. The common law prohibited such contracts, and this rule has been modified only to a limited extent. The modification, however, has not gone to the extent of legalizing all contracts, though mutual in their terms and based upon a consideration, which limit the right of an employé to enter employment in the same line of business to which the contract relates.

"As a general rule, equity will not interfere to restrain by injunction a violation of a restrictive covenant in relation to personal services." Strobridge Litho. Co. v. Crane, 12 N. Y. Supp. 898, 899.1

There are certain exceptions, in which equitable relief by injunction will be granted; but in order to secure that relief it must be plain that the case comes within the exceptions, and does not fall within the general rule which is designed to protect society against the evils of unjust and unreasonable contracts of employment. The law favors

1 Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 58 Hun, 611.

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