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the growth of new and additional enterprises, and is opposed to a monopoly of manufacture, trade, business, or employment. It encourages the fullest and fairest opportunity for business enterprises to develop, and the greatest freedom of action of employés in seeking to better their employment, and condemns, both by the general opinion of judges represented by the common law and by public opinion, represented by. federal and state statutes, any combination operating to interfere with the free development of these principles.

After the bulk of the cases upon this subject have been examined, the general conclusion is irresistible that a temporary injunction will be granted in this class of cases only where it is necessary, reasonable, and equitable to protect the interest of a covenantee.

"A party is never entitled to an injunction as a matter of right. Whether a court of equity will exercise its power in granting such relief always depends upon the facts peculiar to each case. It will never be granted, unless the court, in the exercise of a sound discretion, concludes that such relief is necessary in order to prevent irreparable injury." Mahler Co. v. Mahler, 160 App. Div. 548, 145 N. Y. Supp. 764.

Upon this broad principle all of the cases may be harmonized, although there may appear in isolated cases to be an apparent error of judgment in applying this principle. The principle upon which equitable relief is denied, and the absence of necessity and the lack of reasonableness which forecloses injunctive relief, varies with the facts and circumstances of each case. In some cases the rank of the employé is emphasized, and in other cases the absence of any other relief or the damage that may be occasioned is the determining factor. "Damage done, rather than rank of employé," said Judge Pound in one case, will control the right to injunctive relief in these cases. Witkop & Holmes Co. v. Great A. & P. Tea Co., 69 Misc. Rep. 90, 124 N. Y. Supp. 956. In some cases the contract has been refused enforcement because of its want of reciprocal obligations (Lawrence v. Dixey, 119 App. Div. 295, 298, 104 N. Y. Supp. 516; Dockstader v. Reed, 121 App. Div. 846, 106 N. Y. Supp. 795; Star Co. v. Press Pub. Co., 162 App. Div. 486, 147 N. Y. Supp. 579), or where the provisions of the contract sought to be enforced were harsh and inequitable (Gilbert v. Wilmer, 102 Misc. Rep. 388, 168 N. Y. Supp. 1043; Witmark & Sons v. Peters, 164 App. Div. 366, 149 N. Y. Supp. 642; Tolman v. Mulcahy, 119 App. Div. 42, 103 N. Y. Supp. 936; Mahler v. Mahler, supra). Other cases have refused enforcement of such a covenant, because a substitute could be readily obtained for the delinquent employé. W. J. Johnston Co. v. Hunt, 66 Hun, 504, 21 N. Y. Supp. 314; Dockstader v. Reed, supra. In still other cases the denial of the relief was based upon the conclusion that the negative covenant against accepting other employment was void. Witkop & Holmes Co. v. Boyce, 61 Misc. Rep. 126, 112 N. Y. Supp. 874; Gilbert v. Wilmer, supra; W. J. Johnston Co. v. Hunt, supra.

In all of the cases where relief has been granted by injunction under clauses similar to that involved in this case, the court reached the conclusion that the covenantee was entitled to relief because under the facts and circumstances of the case it was necessary, reasonable, and equitable that the relief should be granted. Thus covenants made, upon selling a business, not to enter into a competing business, have been sustained, as such relief was necessary to preserve in the vendee the fruits of the sale. Tode v. Gross, 127 N. Y. 480, 28 Ν. Ε. 469, 13 L. R. A. 652, 24 Am. St. Rep. 475; Wood v. Whitehead Bros. Co., 165 N. Y. 545, 59 Ν. Ε. 357; Diamond Match Co. v. Roeber, 106 N. Y. 473, 13 Ν. E. 419, 60 Am. St. Rep. 464. Covenants against soliciting special lists of customers of a former employer have been sustained uniformly, as otherwise an employé might seriously impair, if not destroy, the business of his former employer. Witkop & Holmes Co. v. Great A. & P. Tea Co., supra; Davies v. Racer, 72 Hun, 43, 25 N. Y. Supp. 293; Witkop & Holmes Co. v. Boyce, supra; Mutual Milk & Cream Co. v. Heldt, 120 App. Div. 795, 105 N. Y. Supp. 661; Mutual Milk & Cream Co. v. Prigge, 112 App. Div. 652, 98 N. Y. Supp. 458; N. Y. Wet Wash Laundry Co. v. Unger, 170 App. Div. 761, 156 N. Y. Supp. 598; People's Coat, Apron & Towel Supply Co. v. Light, 171 App. Div. 671, 157 N. Y. Supp. 15; Eastern N. Y. Wet Wash L. Co. v. Abrahams, 173 App. Div. 788, 160 N. Y. Supp. 69.

Persons performing unique, special, or extraordinary services, such as great actors, artists, and musicians, have been restrained, since their places cannot be filled, and injunctive relief is usually the only substantial relief that can be obtained. Lumley v. Wagner, 1 De G., M. & G. 604, and similar cases. Likewise persons who discharge important relations toward a business enterprise, such as managers and experts, will be enjoined, as their places cannot readily be supplied. McCall Co. v. Wright, 198 N. Y. 143, 91 N. E. 516, 31 L. R. A. (N. S.) 249; Magnolia Metal Co. v. Price, 65 App. Div. 276, 72 N. Y. Supp. 792; Todd Protectograph Co. v. Hirschberg, 100 Misc. Rep. 418, 165 N. Y. Supp. 906. In many other cases that do not fall under these well-recognized heads the courts have restrained the employé from disclosing or using trade or confidential information, but have refused to restrain him from entering other employment, although contrary to the terms of his contract. Witkop & Holmes Co. v. Boyce, supra; Gilbert v. Wilmer, supra; W. J. Johnston Co. v. Hunt, supra; Tolman v. Mulcahy, supra; N. Y. Wet Wash Laundry Co. v. Unger, supra; Clark Paper & Mfg. Co. v. Stenacker, 100 Misc. Rep. 173, 165 N. Y. Supp. 367, modified 183 App. Div. 915, 170 N. Y. Supp. 1073. The question in this case, therefore, is, assuming this clause of the contract to be valid, whether or not a temporary injunction is a just and proper exercise of the discretion of the court, and this depends upon whether or not such relief is necessary, reasonable, and equitable under the facts and circumstances of the case.

[3] The facts in this case show that the services rendered by the defendant Warren are not such that they cannot be replaced readily by the plaintiff, and that the enforcement of the restrictive covenant as to employment is unnecessary to protect the plaintiff. It appears that the plaintiff has in its extensive plant 13 assistant coaters, which was the position occupied by the defendant Warren, with head coaters, the number of which is not stated. The defendant company has been producing motion picture film, and of course has emulsion coaters,

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just as the plaintiff has these coaters in its plant. There are other film manufacturers, all of whom must employ emulsion coaters, and the same line of work is performed by those who are engaged in the manufacture of photographic paper, in which there is a much greater competition than there is in the manufacture of motion picture film. It is apparent that there must be in this country and in this state a large number of men who are familiar with the work of coating photographic paper and motion picture film, and that this employment is not a unique, special, or extraordinary employment, or even one requiring individual or peculiar qualifications, as those terms are understood in the law of this case. A coater in a photographic establishment does not sustain the relation to that establishment that a great chemist or a great manager or other expert does toward a manufacturing plant. He is, for the purposes of the controversy in this action, so far as the proofs show, and for the purposes of temporary injunctive relief, an ordinary and usual employé. The affidavits show that the process of coating is a comparatively simple one, and that the plaintiff can readily secure all the assistant coaters it needs from its other departments, and that the enforcement of the restrictive covenant is not necessary to its protection in this respect. Nor is it necessary that the plaintiff should have a specific performance of the negative covenant against other employment to protect its secrets of manufacture. The defendant Warren cannot be enjoined from using his skill and experience, and these secrets can be revealed, if there is a disposition to do so, quite as effectually without as with employment on his part.

The enforcement of the restrictive covenant, under the circumstances of this case, considering the interests of the parties and the public, would also be unreasonable. 13 C. J. 473. The law is based upon reason and common sense, and not upon arbitrary rules. In the first place, the defendant company has gone beyond the experimental stage of the manufacture of motion picture film, and is actually producing large quantities of such film. It alleges that it is producing 3,000,000 feet per month, and that it has orders for more than it can fill. It has been operating its plant for some time, has a very large investment in it, and claims to be producing as high a grade of film as the plaintiff. The plaintiff, on the other hand, emphasizes that it occupies 150 acres of land and has 100 or more buildings, with 8,000 or more employés, and yet contends that its business will be affected if an assistant emulsion coater, earning $26 a week, with some additional allowances, is permitted to work for a competitor. The original complaint states that since 1914 the plaintiff has manufactured practically all of the motion picture film, amounting to millions of feet per month, used in the United States, and a large amount of motion picture film used elsewhere. The amended complaint omits this statement, but it is by reference repeated in one of the affidavits, and this motion is made upon both the original and the amended complaint, and the moving papers on this motion allege that the plaintiff is, and has been declared by the courts to be, a monopoly, and that the contract under review in this case is designed to perpetuate that monopoly.

It is evident that the plaintiff's business will not be seriously affected by any competition of the defendant company, and that this case does not come in that class of cases where by reason of special circumstances the competition was unfair. The defendant Warren is only an assistant coater, receiving a salary, with some allowances which brings the amount up to $30 a week, which is not more than an ordinary skilled mechanic obtains in any line of work. It is hardly to be presumed that a man who has been employed in a factory such as the plaintiff's for a period of ten years and receives such compensation is possessed of many of the secrets of manufacture of which the plaintiff claims to be the sole owner. He operated a coating machine at times, and at other times he was a mere assistant. This process of coating consists of placing a sensitized emulsion upon a celluloid base by means of a machine. It is evident that other manufacturers of photographic paper and film must have occasion to use some sort of coating machine and must employ coaters to operate those machines. It appears, therefore, that there are coating machines in general use, so that all that the plaintiff can claim is that there are some special features about its coating machine that are not generally known, and that there is some manipulation or method of coating with its machine that is not known outside of the factory. The defendant company, too, has its coating machine and its coaters, and it is likely that it also has special features for doing this work; but both companies claim to be producing a product which is available for motion pictures, by whatever means the result may be attained. The defendant company may use the defendant Warren in the coating of its film, without the use in the slightest respect of any knowledge that he may have of the special methods of coating in the plaintiff's factory, and he cannot be restrained from using his skill and experience, wherever obtained. Peerless Pattern Co. v. Pictorial Review Co., 147 App. Div. 715, 132 N. Y. Supp. 37; S. W. Scott & Co. v. Scott, 186 App. Div. 518, 174 N. Y. Supp. 583.

The enforcement of the restrictive covenant would also be contrary to well-established principles of equity. The relief sought against the defendant Warren, restraining him from entering the employ of a competitor, is in the nature of a specific performance of his contract. The plaintiff in this action asks the court by injunction to compel him to live up to his contract. Where the employé is under contract for a definite term, and quits before the term expires, the nature of the relief sought by specific performance is quite apparent, and to a modified degree the same end is sought where the contract has expired and the covenant applies to a limited period thereafter. The employer cannot compel the employé to continue to work for him, any more than he can be forced to retain his services; but by seeking to restrain him from entering the employment of a possible competitor he is endeavoring to preserve to himself, so far as he can, the terms of his contract. The conscience of the court is not stirred by the appeal of one who has broken the terms of his employment and quit before the end of his contract as in the Todd & Clark Paper & Manufacturing Company and other cases, but its sympathies go out to a man who has not brok

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en his contract and is nevertheless barred without sufficient reason from earning a livelihood in his chosen occupation.

[6] Specific performance being the gist of the action, the equitable relief by injunction may be granted, where the employer cannot secure a substitute and has no adequate remedy; but where a substitute can be obtained he does not need the unusual remedy by injunction, but can secure adequate relief by way of damages, if any have been sustained. For this reason the remedy by injunction is usually confined to cases where the service contracted for is unique, special, and extraordinary, or special and individual, which the employer cannot obtain at all, or cannot readily obtain, and is not extended to positions like that of defendant Warren, which can be easily supplied. Restrictive clauses in contracts of employment, such as the one in suit, are not enforced as a matter of course; and when the facts show, as they do in this case, that the covenant is unnecessary, unreasonable, and inequitable, temporary relief by way of enforcement will not be granted, pending a trial, until the facts relating to the nature of the employment and the existence of the alleged secrets of manufacture can be determined.

[4,7] While the restrictive covenant of employment in such a case as the one at bar will not be enforced, the employé nevertheless will be restrained temporarily from disclosing alleged secrets of manufacture or confidential information until the case can be tried. This course does the employé no harm, and protects the employer in the secrets of his business. The right to this relief does not depend upon the contract, and is wholly independent of its validity. Courts of equity will restrain a party from making disclosures of secrets communicated to him in a confidential employment, and it matters not, in such cases, whether the secrets be trade secrets, or secrets of title, or any other secrets of the party important to his interest. Story, Equity Jur. § 952; High on Injunctions, vol. 1, § 19 (4th Ed.). This doctrine has been applied in numerous cases to secret processes or formulæ of manufacture. Eastman Kodak Co. v. Reichenbach, 79 Hun, 183, 29 Ν. Y. Supp. 1143; Tode v. Gross, supra; Tabor v. Hoffman, 118 N. Y. 30, 23 Ν. Ε. 12, 16 Am. St. Rep. 740; National Gum & Mica Co. v. Braendly, 27 App. Div. 219, 51 N. Y. Supp. 93; Little v. Gallus, 39 App. Div. 646, 57 N. Y. Supp. 104; Eastern Extracting Co. v. Greater N. Y. Extracting Co., 126 App. Div. 928, 110 N. Y. Supp. 738. This view was taken by the Appellate Division of the Fourth Department in the case of Clark Paper & Mfg. Co. v. Stenacker, supra, where the court held that the defendant should be restrained from soliciting orders for plaintiff's competitor from customers of the plaintiff, and from disclosing the methods or processes of plaintiff's business and the names of its customers, but not from entering the employ of a competitor. Mahler Co. v. Mahler, supra.

In Witkop & Holmes Co. v. Boyce, supra, affirmed 131 App. Div. 922, 115 N. Y. Supp. 1150, the court granted a temporary injunction restraining the defendant from interfering with plaintiff's business and making use of plaintiff's list of customers, and from soliciting orders from them, and said, with reference to the clause in the contract