
    Mutual Milk and Cream Company, Respondent, v. John Prigge, Appellant.
    First Department,
    April 20, 1906.
    Contract — infant enjoined from violating contract not to solicit employer’s customers.
    An infant who, in consideration of employment, has made a written agreement not to solicit orders from his employer’s customers within three years after leaving his. employment, is hound by the contract and will be enjoined from violating the same.
    There is a difference between the liability of an infant for damages fpr breach of' contract and a case where he seeks to repudiate a contract without restoring what he has received thereunder. If restitution cannot he made he will be enjoined from making use of knowledge he has gained to the damage of his employer.
    Ingraham and Clarke, JJ., dissented.
    Appeal by the defendant, John Prigge, from an order of the Supreme Court' made at the Pew York Special Term and entered in the office of the clerk of the county of pew York on the 18th day of January, 1906, as resettled by an order entered on the 31st day of January, 1906, enjoining the defendant during the pendency of the action from soliciting. orders for milk or cream from, and from serving milk or cream to, any or all persons who were customers of the plaintiff while defendant was in the employ of the plaintiff.
    
      Rudolph F. Rabe, for the appellant.
    
      Felix H. Levy, for the respondent.
   Laughlin, J.:

The plaintiff had a milk route in the city of Pew York, and on the 15th day of August, 1905, the defendant entered its employ as a driver of a delivery wagon. The duties of the defendant were to deliver milk and cream and collect therefor. On the'31st-day of August, 1905, as a condition of continuing in the employ of the plaintiff, the defendant signed a contract in writing, whereby he agreed, among other things, not to solicit business from the customers of the plaintiff or deliver milk or cream to them within three years after leaving its employ. It was agreed that the contract might be terminated on the part of either party by giving to the other one week’s notice. The defendant was to receive thirteen dollars per week for his services as long as he remained in the employ of the plaintiff, payable semi-monthly.

On the 7th day of November, 1905,, the defendant, without notice or cause, severed his connection with the plaintiff, and thereafter entered the employ of a rival milk dealer and solicited business from the customers of the plaintiff in violation of his agreement. At the time the contract was made the . defendant was a minor of the age of nineteen years. The' action is brought to restrain the defendant from soliciting business from the plaintiff’s customers or delivering milk or cream to them during the period of three years succeeding the time he left the employ of the plaintiff. He pleads infancy as a defense.

We are of opinion that the injunction was properly issued. This was an executed contract, the. defendant received the benefit of-the employment, and for aught that appears might have continued indefinitely in the plaintiff’s employ thereunder. It does not appear , that any undue advantage was taken of him. Although he had not arrived at the age at which all contracts with him would be binding, he was of sufficient age to appreciate the nature of this contract, and to know whether or not it was for his benefit. The terms imposed were not unusual or unreasonable. It was a perfectly proper condition for the plaintiff to insist upon as a condition precedent to the employment or. as a condition of continuance thereof, that its employee should not, after becoming acquainted with its customers, leave its employ and solicit business for another in Competition with it.

This is not a question of' the liability of an infant for damages for a breach* of contract. The question presented is whether an infant shall be permitted' to repudiate his contract without restoring what he has received thereunder,-and, if restoration cannot be made, without being enjoined from making use of the knowledge he gained, to the disadvantage and -damage of his employer;

The ordinary rule is, that although an infant may rescind an executed contract at will, he must restore or offer to restore to the party with whom he contracted what he received thereunder: (Rice v. Butler, 160 N. Y. 578 ; Pierce v. Lee, 36 Misc. Rep. 870.) This principle is applicable to the cáse at bar.- Here he cannot surrender to the plaintiff the knowledge he acquired while in its employ concerning its customers and his acquaintance with them, which doubtless enables him to receive greater compensation from a rival dealer, and, therefore, as a substitute for restoration he should be enjoined from making use of that information in violation of his agreement made at the time when he desired and obtained employment and upon the faith of which he obtained the information and acquaintanee. No case in point arising within this, jurisdiction is cited, but a modern English case is cited, showing that this principle has been applied by 'the courts there. (Evans v. Ware, L. R. [1892] 3 Ch. Div. 502. See, also, Fellows v. Wood, 59 L. T. Rep. 513.)

It may be said that people should not employ infants where a knowledge may be acquired which may be used disadvantageous^ to the employer. Ho man would engage the'services of an infant if he could not impose the same condition for his own protection against the use of his formulas, trade secrets and lists of - customers that he could exact of an adult. * There appears to be no good reason why infants should -be- excluded from this class of employment,"which would necessarily result if the courts wereto hold that" the- employer. has no remedy against a violation of such conditions as those embraced in this contract.

It follows, therefore,-that the order should be affirmed, with ten dollars costs and disbursements. "

O’Brien, P. J., and Patterson,-J., concurred; Ingraham and Clarke,'Jj., dissented. '

Order affirmed, ytith ten dollars costs and disbursements. ' Order filed.  