
    Charles D. Fredericks and others v. Constant Mayer and another.
    -Whether an injunction may rightfully be issued to restrain a defendant from working, pendente lite, for any other person than the plaintiff, in violation of a contract with the plaintiff, is, upon-the authorities, a doubtful question, but the precedents in this State seem to be against the exercise of the power. Admitting, however, that the power of granting such an injunction, pendente lite, exists, it is certain that its exercise must, in many cases, be a harsh and oppressive proceeding, since it may deprive the defendant of his only means of gaining a subsistence or of supporting his family during the continuance of a litigation that may last for months or years.
    There are certain rules that ought to govern a Court of Equity in the exercise of its summary, and in a degree arbitrary, power of granting injunctions, and these rules forbid the exercise of the power where it will operate oppressively or work an immediate injury, or when the right of the plaintiff is doubtful, or the facts are not clearly ascertained. An injunction should not be issued unless the right is clear, and it will not be awarded in doubtful cases, nor in new ones not coming within established principles.
    These views ought to govern the Court even upon a final hearing: Much more should they be deemed controlling when the application is for an injunction pendente lite, and the grounds of the application are controverted and the facts are involved in serious doubt.
    
      Seld, that the plaintiff, upon the papers before the Court, had failed to establish a case that could warrant the issuing of an injunction in the present stage of the action. Neither the right, nor the facts upon which he relied, were clearly established.
    Order denying injunction affirmed with costs.
    (Before Düeb, Boswobth, Hoepmau and Woodbubt, J.J.)
    Heard, May 9;
    decided, May 16, 1857.
    This action comes before the Court, at General Term, on an appeal by the plaintiffs from an order made on the 9th of March, 1857, by Mr. Justice Hoffman, dissolving a temporary injunction, and denying a motion for its continuance pendente lite.
    
    The following are the material facts of the case, as collected from the pleadings and the affidavits of the parties.
    The bill of complaint was filed to restrain the defendant, Mayer, from painting photographic likenesses, &c., for any person or persons other than the plaintiffs, and to recover damages for his alleged breach of contract with the plaintiffs to work for them.
    It alleges that the plaintiffs are partners, carrying on business together as photographists in Paris, under the firm name of Fredericks, Penebert & Le Blanc, and in the city of New York, under the name of Charles D. Fredericks, and that as such copartners they entered into a contract with the defendant, Mayer, on the 2d day of June, 1855, at the city of Paris, whereby they agreed to pay his expenses to New York, and to employ him there for the term of three years, at a salary named, and that he agreed to work as an artist, painting, &c., “ for the house of New York,” and “not to work for any other house or person during the term of the contract, excepting Fredericks, Penebert & Le Blanc,” and that he would proceed to New York, and place him? self at the disposition of Mr. Fredericks for the said term of three years.
    That the defendant, Mayer, in pursuance of the said contract, came to New York and entered into the service of the plaintiffs, and remained in their service, under the direction of the said Fredericks, until about the first of September, 1856, when he left their service and entered into the service of the defendant, Gurney, for whom he is now performing similar work, &c., and that the defendant, Gurney, when Mayer went into Ms employ, knew of the existence of the contract between the plaintiffs and Mayer.
    The defendant, Mayer, by affidavit, admits the making of the contract, but denies that it was performed on the part of the plaintiffs, or that he, in fact, ever entered into their service; on the contrary, he states that on his arrival in Mew York he found that he had been deceived,—that he then found that the plaintiffs had no “house” in this city, and that said firm had no existence here—but that the defendant, Fredericks, had previously entered into partnership with the defendant, Gurney, under the name of Fredericks & Gurney, who were carrying on the business, and that he would not have left Paris but for his reliance upon the representations and his belief that the plaintiffs had an established house in Mew York,—that being wholly dependent upon his profession for support, and his family and parents dependent upon him, and the plaintiffs not employing, nor offering to employ him, he entered into the employ of the firm of Gurney & Fredericks, and continued to work for them (for upwards of one year) until their partnership was dissolved, about the 1st of August, 1856, and received his salary solely from them.
    That after the dissolution of the firm of Gurney & Fredericks, he entered into an agreement with Gurney to work for him, and is satisfied of the ability of Gurney to pay Ms salary, which it is absolutely necessary that he should receive regularly for the support of himself and his parents, and that he does not feel satisfied of the solvency of the said Fredericks.
    The defendant, Gurney, by Ms affidavit, states that eighteen months prior to the contract with Mayer he entered into partnership with Fredericks, and that the other plaintiffs were not engaged in business with him.
    That he advanced to Fredericks, for the use of the firm, five hundred dollars, on Fredericks’ representation that that sum was necessary, to be deposited in Paris, as security, to engage artists for the partnership to color photographs, and also advanced the money to pay the artists’ expenses to this country, and that Mayer, and other artists came to this country and entered into the employment of the firm of Gurney & Fredericks, and that he supposed the contracts were made with them in the name of the firm of Gurney & Fredericks, but the contracts being in French he could not read them, and, in fact, he says he did not see them till shortly before the dissolution of that firm-.
    That the plaintiffs never had any place of business in Hew York until after such dissolution; That Fredericks was bound by their agreement of co-partnership to give his undivided attention to the business of their firm, and he avers that the contracts in question were drawn wrongfully, and with intent to defraud him, in the name of the plaintiffs; that Mayer was, in fact, always in the employ of Gurney & Fredericks, who paid his expenses to this country, and his salary.
    Both Mayer and Gurney also refer to an agreement, or consent, signed by Gurney and by Fredericks, giving Mayer permission to go to Philadelphia (where he worked for the firm of Fredericks, Penebert & Germon), to return whenever they, Gurney & Fredericks, should desire it, and stipulating that “the contract between Mr. Mayer and ourselves will not be affected by this absence.” Under this permission Mayer was absent about one month.
    The plaintiff, Fredericks, to repel these affidavits, states that the plaintiffs, Fredericks, Penebert & Le Blanc, never had any connection with Gurney, nor were co-partners with him, but that as between him and Penebert and Le Blanc he accounted for one-half of his share of the profits of the business of Gurney & Fredericks; He does not allege that the plaintiffs, in any other manner, had any house or place of business in Hew York.
    He does not deny that the money was advanced, as stated by the defendant, Gurney, and that the artists entered into the employment of the firm of Gurney & Fredericks, and continued in their employment until the dissolution of that firm.
    Various other facts of minor importance are stated in the affidavits of the parties, and other affidavits read on the motion, and in many particulars there is direct conflict between the affidavits produced, and particularly upon the question whether Gurney knew, during the continuance of the partnership, and when the artists entered into their employment, in whose names the contracts were drawn; and as against the defendant, Gurney, the plaintiff, Fredericks, insists that he was to produce the artists and allow them to work for Gurney & Fredericks, while they continued together, and that, having the disposal of them himself, he has a right to retain them in his own service.
    
      A. R. Dyett, for plaintiffs,
    relied principally on Lumley v. Wagner¡ 13 Eng. L. & Eq. R. 252.
    
      F. Howland, for defendants,
    cited the cases in our own Courts, 4 Paige, 264. 2 Edw. Oh. R. 529; 1 Barb. S. C R. 315 as proving that the Court had no power to grant an injunction.
   By the Court. Woodruff, J.

The question argued at some length before us on this appeal is, whether the Court will interfere by injunction to restrain a breach of a contract for personal services of the description mentioned in the complaint.

Although it is conceded that the Court cannot, by its decree, compel an artist to employ his skill in his art for the plaintiffs’ benefit, it is nevertheless insisted, that where the contracting artist has agreed that he will not work for any other person, the Court will do all that it can to enforce performance by enjoining the artist not to work for any other than the plaintiffs. Various authorities are referred to, as showing the validity of such an agreement, and in support of the authority and duty of the Court to interfere by injunction. The case of Lumley v. Wagner, (1 De Gex, McNaughten & Gordon, 604; 13 Law & Eq. R. 252,) is mainly relied upon, with the cases therein cited.

On the other hand, it is insisted that an injunction should not issue to restrain a defendant from rendering services to another, when it is clear that the court cannot, by its decree, compel a performance of the affirmative covenant to work for the plaintiffs. That the injunction is only granted as auxiliary to the execution of the decree, and where the decree can itself be enforced; and that the Court will not attempt to compel the specific performance of an agreement to render personal services, but will leave the party; complaining of a breach, to his remedy at law. And to these points, Morris v. Coleman (18 Ves. 437), Clarke v. Price (2 Wils. Ch’y R. 157), Kemble v. Kean (6 Sim. R. 333), and Baldwin v. Soc. for Diffusing Useful Knowledge (9 Sim. R. 393)—in England: and De Rivafinoli v. Corsetti (9 Paige, 264), Hamblin v. Dinneford (2 Edw. Ch. R. 529, and Sanquirico v. Benedetti (1 Barb. S. C. R. 315)—in this State, are cited.

Although the precedents in this State, so often as the question has arisen here, seem to be against the plaintiff, we do not think it necessary, and it is therefore, in this stage of the cause, perhaps improper to decide this question.

The appeal may be disposed of upon the grounds which appear in substance to have governed the decision of the motion at the Special Term.

The motion is for an injunction pendente lite. It is a harsh and, may be, an oppressive exercise of the power of the Court, operating to deprive the defendant of the means of gaining a subsistence, and of the ability to support his family, while the litigation is going on, which may continue many months, and in a case in which the right of the plaintiffs is denied.

The frequency of applications for injunctions, pendente lite, and, I may add, the facility with which they are obtained, may properly induce us to recur to some familiar rules which ought to govern the Court in the exercise of its summary and, in a degree, arbitrary power; it should be guarded by a most cautious discretion, forbidding its exercise when it will operate oppressively or work immediate injury, or where the right of the plaintiff is doubtful, or the facts are not clearly ascertained. It has been well said, that “ there is no power, the exercise of which is more delicate, which requires greater caution, deliberation and sound discretion, or is more dangerous in a doubtful case, than the issuing of an injunction. It is the strong arm of Equity, which ought never to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, * * * and it will not be awarded in doubtful cases, nor in new ones not coming within well-established principles.” (Mr. Justice Baldwin in 1 Bald. Cir. Ct. R. 218; note to 2 Story’s Eq. Jur. § 959 b.)

These views should govern the Court on a final hearing, and with all the proofs necessary to a final decree before them. Much more should they control us on an application for an injunction pendente lite, while the grounds of the application are controverted, and the facts involved in serious doubt. Even in the case relied upon by the plaintiffs’ counsel it will be seen, by a recurrence to the case then before the Court, it Was deemed that there was no doubt of the rights of the parties upon the evidence.

However, then, the present case may hereafter appear, when the proofs shall be produced upon the trial, and whether the Court may or may not be brought to conclude that an injunction may be issued to restrain the breach of the defendant’s covenant not to work for any other than the plaintiffs, it must suffice for the purposes of this appeal to say, that the papers before us do not establish such a case as warrants the granting of this summary and harsh remedy in the present stage of the action. Neither the right nor the facts are clearly established in the plaintiffs’ favor.

Without entering into any minute detail in regard to the various matters wherein the affidavits are conflicting) we think that if the balance of evidence does not establish, it creates a strong probability, that the contract with Mayer was itself a fraud upon him, in holding out that the plaintiffs had a house or firm in New York, and were carrying on business here, and that he was to have employment with them in such firm, when, in fact, no such firm existed here, and Fredericks was already in partnership here with another, (the defendant, Gurney,) and therefore that the agreement did not bind Mayer at all. And if it be suggested, that, by the contract, Mayer placed himself at the disposal of the plaintiff Fredericks, the answer is furnished by the contract itself which limits that disposal to working for the plaintiffs’ house in New York. And if the acts of the parties, Fredericks and Mayer, may be regarded as showing that working for Gurney and Fredericks was within the purview of the contract, as mutually understood and intended, it is answered, plausibly, at least, that Gurney & Fredericks, being the only house in New York in which either of the plaintiffs had any interest, placing the defendant, Mayer, with them, maybe regarded as a practical exposition of the contract, designating that house as the house in New York for whom he was to work in New York; and therefore, that upon the dissolution of that firm, the obligation ceased, because he could work for them no longer. This exposition of the contract finds strong support in the paper signed by Fredericks himself, in which the contract is distinctly recognised as a contract between Mayer and Gurney & Fredericks, very clearly indicating, that, whether in their names or not, it was a contract for their benefit.

The doubts in favor of the defendant, Gurney, are even greater. It is not denied that the "firm of Gurney & Fredericks existed long before the contracts with the artists were made; that Gurney advanced the five hundred dollars to secure the employment of the artists; that he paid their expenses to this country; that they entered into the employment of the firm and so continued until the dissolution, and were paid by the firm. Although there is contradiction on the subject, we are not satisfied that the making of these contracts with the artists, in other names than that of the firm, was with his knowledge or assent. H, in this respect, there was not a purposed deception, it at least appears that the contracts were for the benefit of the firm, and were so treated and so regarded, by both Fredericks and Gurney, until their interests became hostile, and Fredericks was about to establish a rival business. The inference from the papers before us is by no means slight nor feeble, that the whole enterprise of bringing the artists to this country originated with Gurney & Fredericks ; and, the whole advance being made by Gurney on their account, with the expenses resulting from the enterprise, that the engagement with the artists, as between Gurney and Fredericks, was for the sole benefit of that firm, and therefore subject to the usual incidents of a dissolution of the firm, in which case Fredericks could not equitably claim any exclusive interest in the contracts, or sole control over the employees.

I am aware that there are many statements, on the behalf of the plaintiffs, that are relied upon as weakening the inferences above intimated, and that there are many particulars in which there is a conflict of evidence; but the general result, in its influence upon our minds, is sufficiently indicated by what has been said. In this statement, it is not designed to say that these views, so favorable to the defendants, are decisively established. It is enough to say that upon the merits, the plaintiffs’ case is involved in great doubt, and, I may add, that the scale seems to incline in the defendants’ favor.

After what has been suggested, in regard to the propriety of granting an injunction under such circumstances, it only remains to add, that we think the discretion of the Court at special term was wisely exercised, and that the order appealed from must be affirmed.

Order affirmed;  