
    Edgar Bronk, Resp’t, v. John Riley et al., Commissioner of the Albany Penitentiary Commission, and John McEwen, as Superintendent of the Albany Penitentiary, App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 31, 1888.)
    
    1. Practice —Mandatory injunction—When granted.
    An injunction which in effect- determines the litigation and gives the same relief which is expected to be obtained by the judgment should be granted only when necessity requires.
    2. Same—What not a sufficient ground for granting an injunction.
    An injunction will not be granted to enforce a contract which is not binding in law.
    3. Same—Will not be granted to compel employer to continue BUSINESS.
    The court will not grant an injunction to compel an employer to continue a business in which he has engaged the personal services of the plaintiff for a definite time. The ¡fiaintiff has a sufficient remedy in an action for damages for breach of contract.
    4. Same—When injunction should not be granted.
    The defendants, as commissioners of the Albany peniten ary and superintendent of -that institution, entered into a written contract by which the plaintiff was employed as manager and agent to oversee the manuiaeture of brushes in the penitentiary and the sale thereof, for which he was to receive ten per cent of the sales, etc The agreement was to last for one year. The plaintiff having been notified by the defendants that after the first of September they would cease to further manufacture, and would not recognize the contract as in force, an action was commenced and a preliminary injunction directing that the manufacturing be continued was granted. Held, error, that the plaintiff had a complete remedy in an action for damages for a breach of contract.
    Appeal from an order of the Albany county special term restraining the defendant from interfering in any manner with the plaintiff in the performance of the contract for the manufacturing of brushes- by machinery in the Albany penitentiary.
    
      D. Cady Herrick, for app’lts; Edwin Countryman, for resp’t.
   Learned, P. J

This is an appeal from a preliminary injunction order. The order forbids defendants from interfering with the plaintiff in the performance of his contract; from stopping the use of plaintiff’s plant or machinery, or -of the employment of convicts, under said contract, and -requires the defendants to carry out and perform the said contract. It is then what is called a mandatory injunction, requiring the defendants to perform a contract into which they entered with the plaintiff.

The defendants are the Commissioners of the Albany Penitentiary and the superintendent of that institution. In February, 1888, the superintendent and the plaintiff entered into a written contract approved by the commissioners. By this the superintendent employed plaintiff as manager and agent to oversee the manufacture of brushes in the penitentiary and the sales thereof, for which service he was to receive ten per cent on the sales. He was to guaranty collections. The superintendent was to hire- from plaintiff the necessary machinery at a specified price. The agreement was to last for a year.

The complaint charges that in August, 1888, the commissioners resolved to notify the plaintiff that on and after September 1st they would cease the further manufacture, and would not recognize the contract as in force. This they did, as claimed, under chapter 586, Laws of 1888, and under a provision in the contract that if the legislature should pass any act abolishing the use of machinery in said prison they might notify the plaintiff, and the contract should cease. Thereupon this action was commenced the 15th of August to compel the defendants to proceed with the contract, and this preliminary injunction was granted August 28th 18 N. Y. State Rep., 179.

In the opinion of the learned justice the act referred to, which applies to *' the penal institutions of the state,” does not embrace in those words the Albany penitentiary.

No answer has yet been put in. The motion was granted upon affidavits.

A question arises before considering the construction of the statute. That is, whether, in a case like the present, such an injunction should bo granted.

Preliminary injunctions which only prevent the defendant from doing an act which would render the final judgment ineffectual, may be granted with some readiness. But those which in effect determine the litigation and give the same relief which it is expected to obtain by the judgment, should be granted with great caution and only when necessity requires.

This action is by an agent to compel his employers to carry out the contract with him, and to continue a business in which he is to receive a percentage of the sales. While taking the form of an injunction the remedy is practically an order for specific performance. And it is remarked by Mr. Pomeroy that the jurisdiction to grant injunctions to restrain a breach of contract, is substantially coincident with the jurisdiction to compel specific performance ; and further, that the American courts have tended to restrict rather than enlarge this jurisdiction. Pom. Equity, § 1341, and note.

This was a contract by plaintiff for personal services. Now, in regard to such contracts when they are special, unique and extraordinary,” or when the services are to be done by a person having “ special, unique or extraordinary qua,lifica pions,” as, for example, by an eminent actor, singer, artist, and the like, then courts of equity have assumed jurisdiction. ]?om. Equity, § 1343. The counsel for the plaintiff in this case, citing from that section, says that the rule is established in England that the violation of such contracts may be restrained by injunction.

The English cases are of this character. Where an actor, singer, or the like, has agreed to perform for a party at a certain place, such actor, singer, or the like, has been restrained from performing elsewhere. Lumley v. Wagner, 1 D. G. M. & G. 604 ; Montague v. Flockton, L. R., 16 Eq., 189. So in the case of Ward v. Beeton (L. R., 19 Eq., 207) the plaintiff had purchased the copyright of a book from defendant, and defendant ha.d agreed to give his whole time to their service and not to engage in any other business. He was restrained from advertising a rival work. This subject was examined in Fredericks v. Mayer (l Bosw., 227), and it was shown that the precedents in this state were against the exercise of this power. See, also, De Rivafinoli v. Corsetti (4 Paige, 264), Sanquirico v. Benedetti (1 Barb. S. C. R., 315), and Hamblin v. Dinneford (2 Ed. Ch. R. 527).

Now, without citing other cases, it is to be particularly noticed that these injunctions, when they have been granted, have only restrained the person who was to render personal services from engaging in other business. They have not assumed to compel him to continue in the business named in the contract; far less have they compelled the other party to carry on the business, for which he had engaged tire aggrieved person’s services. If, in this case, this plaintiff had engaged in some other brush business, and the defendants had brought an action to restrain him from carrying on some other brush1 business, then tho situation of the parties would have been similar to that of the parties in the English cases relied upon by plaintiff. But even such an action would not be within the English decisions ; for the services which the plaintiff contracted to render were not to be done by a party having special, unique or extraordinary qualifications.” It can readily be seen that the court might restrain by injunction a great actor from playing at another theatre in violation of hie contract, while it would not restrain a salesman from quitting his employer before his contract had expired, even though, under the contract, he were to be paid by a percentage on sales.

. For it might be said that one who had engaged a great actor could procure no substitute if the actor broke his engagement and performed elsewhere. While, if a salesman left his employer, it would ordinarily be easy to supply his place. Thus it is that Mr. Pomeroy limits the cases to those of “special, unique and extraordinary qualifications.”

We are not aware of any case where there has been a contract for personal services, and where the court has by injunction compelled the employer to continue a business in which he had engaged the services of the plaintiff. ' And there are obvious reasons why this should not be done. The business might be unprofitable, or the party might desire to close up his business, or he might have a personal dislike to the employee. In these and similar cases he could properly discharge the employee and pay damages for the breach of contract.

Therefore, it is that none of the English cases apply here. Even if an actor were to be paid a certain proportion of the gross receipts, we cannot think that the court would compel the manager of the theatre to carry on the business.

Possibly the plaintiff may urge a familiar rule that in actions for specific performance, remedy is said to be mutual. He may insist that, by analogy, wherever an injunction would be granted to restrain the violation of a contract for personal services on the one side, it would be granted on the other. But we think that does not follow. If personal services were to be paid at a certain fixed price, the party who performed or tendered performance of the services could obtain redress by an, action for money. Nothing else would be needed. And so in this case if the plaintiff performs, or offers to perform, all that he needs is an action for damages.

The plaintiff urges that by implication the defendants in their contract agreed not to employ the convicts at another work than brushmaking, and he says that an injunction should issue to prevent such other employment. But this injunction goes much further. It does not forbid other work, except by implication, but it commands positively work under the contract. This is beyond the line of precedent.

There is here no case of irreparable injury. The whole matter is one of pecuniary damage.

Again, the plaintiff’s remedy by an action .for damages is complete, because if the contract were continued through the year the plaintiff at the end of it would have received a certain amount of money. Now, if he should recover that same amount of money in an action of law, he would be exactly as well off as if the contract had been carried out. There are no collateral damages, such as loss of trade and destruction of credit, as are mentioned in Watson v. Sutherland (5 Wall., 74). All the plaintiff can ask, all that he can have in any case, is the amount of ten per cent upon the sales, and rent reserved

But the plaintiff argues that it is impossible to prove what the amount of sales would be; not at all difficult to prove what they might be. The capacity of the working power of defendants should show how many brushes they might have made. The market price would show what the brushes would sell for, and it would not lie with a party which has broken its contract to say, perhaps, he might not have found a market. The case of Wakeman v. Wheeler and W. M. Co. (101 N. Y., 205) shows how far the court will go in giving what are sometimes called prospective. damages. In that case the damages were much more uncertain than they could be in this

But the plaintiff says there is no legal remedy, because there is no person who can be sued at law upon this contract. It seems to us that this position, if correct, takes away plaintiff’s ground altogether. He asks us to enforce a contract in equity because there is no contract in law. If these defendants made no valid contract, then there is nothing to enforce by injunction. If they made a valid contract, an action at law must lie. Some one must be the party on the other side of the contract. The plaintiff has assumed in this action that the defendants are the proper parties.

He sets up that McEwen made the agreement, and that the commissioner approved. And he asks that the defendants carry out and perform the terms of said contract. He therefore assumes that there is a valid contract with some one as he says, with the defendants, or at least with McEwen. Now, without considering whether or not the plaintiff has selected the proper defendants, it seems to us plain that if there is a valid contract he can have damages for its breach; if there is none, he cannot have an injunction.

If, in answer to this, the plaintiff should cite the case of specific performance of a verbal contract for the sale of land, where1 there has been part performance, the reply is that relief in that case rests on equitable fraud.” The defendant is really charged upon the equities done in execution of the contract and not upon the contract itself. Maddison v. Alderson, L. R., 8 App. Cas., at 475.

We have already said that where a person engages an employee in a business for a specified time, it would be wrong to compel the employer to continue the business, which might be growing unprofitable, or in some way objectionable to him.

That view strikingly applies here. It is known that a serious question has arisen whether the defendants can lawfully continue the use of machinery. Careful and able opinions have been expressed "on each side. Now in this uncertainty it may well be prudent for the defendants to refuse to do what may possibly be illegal, and what they seem to think is illegal. If it is not illegal, and if, therefore, they have broken their contract, let the plaintiff sue for damages. But the court should not use the forcible remedy of injunction, requiring them to do an act which it may finally be determined that they had no right to do. It has been well said by defendant’s counsel that even if the statute does not apply to the penitentiary, yet it is an evidence of the public policy of the state. And if defendants choose to regard that public policy, they should be allowed °to do so; subject to the risk on their part (or on the part of those whom they represent) of compensating the plaintiff for any damages which this recognition of the general policy of the state may have caused him.

In these views we do not pass on the question whether the statute applies to the penitentiary, but we are of the opinion that the injunction should not be sustained.

Order reversed, with ten dollars costs and printing disbursements, and motion for injunction denied, with ten dollars costs.

Lardón, J., concurs. 
      
       Reversing 18 N. Y. State Rep., 179.
     