
    (67 Hun, 225.)
    FRANCISCO v. SMITH.
    (Supreme Court, General Term, Fourth Department.
    February, 1893.)
    Assignment of Contract—Rights of Assignee.
    Defendant, engaged in carrying on the business of a bakery, conveyed his lease, store, stock, store fixtures, and good will of his business to plaintiff’s husband, F., covenanting not to carry on a similar business in the same neighborhood for five years. F., after conducting the business for some time, gave to a creditor a bill of sale of the stock of goods, and certain property connected with the business. The creditor took possession under the bill of sale, and closed the store for five days. Thereupon plaintiff pm-chased the creditor’s interest in the property, and, with F.’s consent, reopened the store, and continued the business. Subsequently F. assigned to plaintiff all his interest in the contract with defendant. Held, that plaintiff became the entire owner of the property and business, and acquired all of F.’s rights under his contract with defendant, and hence could sue defendant for a breach of the covenant in the contract.
    Appeal from special term, Herkimer county.
    Action by Harriet A. Francisco to restrain Charles A. Smith from carrying on the bakery business in the village of Little Falls. From a judgment for defendant, entered on an order dismissing the complaint, plaintiff appeals.
    Reversed.
    Argued before HARDEN", P. J., and MARTEN" and MERWIH, JJ.
    M. G. Bronner and A. M. Mills, for appellant.
    John D. Beckwith, for respondent.
   MERWIN, J.

The plaintiff claims as assignee of her husband, and the main question upon tMs appeal is whether she is in a position to have the benefit of the covenant between the defendant and her husband. Ho question is made about the validity of the covenant as between the immediate parties. It is quite clear that it was assignable in connection with, a sale of the property and business of the assignor, (Match Co. v. Roeber, 106 N. Y. 487, 13 N. E. Rep. 419, ) although it did not in form run to the assigns of the covenantee, (see Hedge v. Lowe, 47 Iowa, 137; Pemberton v. Vaughan, 59 E. C. L. 87.) In order to determine whether the plaintiff has become the owner of the covenant in connection with a sale of the property and business, it will be necessary to refer to the facts, which are substantially undisputed. On and prior to February 20, 1888, the defendant was carrying on a bakery and confectionery shop at Little Falls. At that date he made an agreement, in writing, with Frank E. Francisco, the husband of the plaintiff, by which, in consideration of the payment of $1,200, he sold to Francisco his bakery and shop, with the good will of the business and certain property described in a bill of sale made that day, and assigned the lease of the store where he carried on the business. In this agreement there was the following provision:

“Smith agrees and binds himself that he will not, for the period of five years front March 1, 1SSS, or during that timo, engage or become interested in the business of carrying on a bakery or confectionery store, or in the business like the one hereby sold out, in ihé village of Little Falls, or in the immediate neighborhood.”

Possession was taken by Francisco under the agreement on March 1, 1888, and the consideration was paid, and thereupon he entered upon the business. This he carried on up to about the 10th November, 1889, in the same way and manner and at the same places that defendant had previously carried it on, and used therein substantially the same fixtures and appliances. In February, 1889, in order to secure Clark & Wood, of Fort Plain, for money borrowed and past indebtedness, he gave to them a chattel mortgage for about $1,300 on certain property connected with the business; and after the maturity of the mortgage, and on November 9, 1889, he gave them a bill of sale of the property mentioned in the mortgage, and on stock and goods on hand and property connected with the business. On the next day they, by virtue of the chattel mortgage and bill of sale, took possession of the property and store, closed the store, and took part of the property to Fort Plain. They remained in possession and kept the store closed until November 15, 1889, doing no business whatever. - At that date the plaintiff, through her husband, as her agent, purchased of Clark & Wood all their interest in the chattel mortgage and the property covered by the bill of sale, and paid them in full for their claim against the husband, less certain portions of the property kept bv Clark & Wood and applied upon the debt. None of the property so kept was part of the property purchased of defendant. Prior to- this purchase by plaintiff it was verbally agreed between plaintiff and her husband that plaintiff would furnish the money and make the purchase, and that the husband should take charge thereof, and of her business connected therewith, and that the same should be carried on in plaintiff’s name, and that the family, consisting of the husband, wife, and child) should be supported out of the proceeds of the business, the husband being a practical baker, and the plaintiff not. This arrangement was carried out. The plaintiff took immediate possession of the store and bakery, and the tools, fixtures, and appliances therein contained, reopened the business, selling the, same kind of goods and to substantially the same customers as the husband had been previously doing, and the business was. carried on down to the time of the commencement of this action in the same way, and in the same place, and with the same tools and fixtures, as previously by the husband and by the defendant, the husband all the time being the manager. About December 15, 1890, the defendant commenced to carry on another bakery business, contrary to the provisions of his agreement, and so continued to the commencement of this action, on May 30, 1891. On December 18, 1890, Frank E. Francisco notified the defendant that he was violating his contract, and required him to discontinue the business he had started upon. On the 25th May, 1891, Frank E., for a nominal consideration, executed and delivered to plaintiff an assignment of the agreement with defendant, and indorsed thereon as follows:

“For value received, I hereby sell, assign, transfer, and set over to Harriet A. Francisco all my right, title, and interest in and to the within contract, and in and to the covenants therein contained, together with all claims and demands which I have against Charles A. Smith for any and all breaches thereof; also all my right, title, and interest in and to the business, and the good will thereof, formerly owned and carried on by me, which I have not previously sold, and of which you were not already the owner, and mentioned and referred to in the annexed instrument, together with all property and property rights therewith connected.”

, Upon the same day the plaintiff notified defendant of her ownership of the contract and the business, and called on him, to discontinue his business. The plaintiff’s husband, as the court below finds, did not transfer or attempt to transfer to plaintiff the business which he was conducting and which he purchased of defendant, or the good will thereof, or the lease of his place of business, or the contract between himself and defendant, or any of the covenants therein, until the assignment of May 25, 1891. It would also seem from the evidence that the tools and fixtures were not transferred until then.

The fact that the assignment to plaintiff May 25, 1891, was for only a nominal consideration, or was in fact without consideration, does not in itself aid the defendant. Sheridan v. Mayor, 68 N. Y. 30. It was valid as against the assignor. The material question is whether the plaintiff became the owner of the covenant, under such circumstances as will permit her to enforce it within the rule laid down in 106 N. Y. and 13 N. E. Rep., above referred to. By reason of the transaction with Clark & Wood and of the assignment from her husband, the plaintiff has become the entire owner of the property and business. She was not such without the assignment. The lease, the good will, and the contract were not transferred to Clark & Wood, nor apparently the tools and fixtures. Under an express arrangement with the husband, and practically for his benefit, Clark & Wood were bought out. After five days’ stoppage, the same business was reopened, and continued in the same place, in the same manner, with the same fixtures, and supplying the same customers, and was in reality for the benefit of the same parties. The five-days stoppage of the business did not kill the five-years covenant. It was only temporary, pending the settlement of the husband’s debt. The business was renewed in the name of the wife, with the assent of the husband, under his management, and for his benefit; and when finally, in order to complete the title of the wife to the whole, the assignment to her was made by the husband of whatever interest he still held, including his contract with defendant, it was in substance a transfer of the contract in connection with a sale of the property and business of the assignor. We think it should have been so held by the trial court. If so, the plaintiff was in a position to maintain the action. It follows that the judgment must be reversed. Judgment reversed on the law and the facts, and a new trial ordered, costs to abide the event. All concur.  