
    Moses Zimmermann and Edward Guckenheimer, Appellants, v. George Gerzog, Respondent.
    
      <Contract of sale of a business — agreement by vendor not to engage in it—tlie remedy of the vendee is not limited to liquidated do/mages — equitable relief.
    
    "Where a person engaged in the provision business, and in the manufacture of bologna sausages, sells his business and its good will to another, covenanting not to enter into the same business, in any capacity, within a radius of 450 miles of the city of New York, for ten years, and to abstain from all competition with him during that period, the vendee promising to employ him, and he entering' into such employment, the vendee is entitled, upon a breach of the agreement by the vendor, to relief by injunction, and his remedy is not limited to the recovery of the sum of money fixed by the terms of .the agreement as liquidated damages in the event of a breach.
    
      Semble, that even were the remedy limited to the recovery of the liquidated damages, equity would interfere to enjoin the vendor, if he were insolvent, until such liquidated damages were paid.
    Appeal by the plaintiffs, Moses Zimmermann and another, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the defendant, entered in the office of the clerk of said court on the 18th day of November, 1895, upon the decision of the court rendered after a trial at an Equity Term thereof, dismissing the plaintiffs* complaint upon the merits.
    This appeal was transferred from the first department to the second department.
    
      Samuel D. Levy, for the appellants.
    
      Gibson Putzel, for the respondent.
   Hatch, J.:

The purpose of this action is to obtain an injunction restraining the defendant from engaging in the provision business and in the manufacturing of bolognas or sausages, or trafficking therein within a radius of 450 miles of the city and county of New York for a period of ten years from the 17th day of March, 1893. The complaint alleged inter alla that heretofore, and on March 17, 1893, the plaintiffs and the defendant entered into a written agreement whereby the defendant sold and transferred to the plaintiffs and to their successors and assigns the good will of the defendant’s provision business and manufactory of bolognas or sausages; that said good will consisted of a large number of customers, who were in the habit of dealing with the defendant at his said place of business, No. 20 Avenue 0, in the city of New York. The consideration for such sale was the sum of $10,283.95, which the plaintiffs paid, as stipulated. In consideration of such payment the defendant covenanted in said written agreement that he would not enter into any provision or sausage or bologna business within the said radius of 450 miles of the city and county of New York within a period of ten years from the date of said agreement, and that he would abstain from all competition with said plaintiffs in such business during said period ; that plaintiffs promised to employ the defendant in and about their business during the. aforesaid period for and at the agreed price, of $2,800 per annum, and said defendant thereupon entered upon such employment in pursuance of such agreement ; that plaintiffs thereafter continued to conduct said business; that all of defendant’s said customers, on account of such transfer, dealt with the plaintiffs; that thereafter the defendant, in violation of said agreement, left the employ of the plaintiffs, established a rival business in said city of New York and entered into competition with these plaintiffs in the provision business and manufacture of bolognas or sausages, and is irreparably injuring plaintiffs in their said business; that maliciously and willfully, and with intent to injure and destroy the benefits obtained by the plaintiffs under said agreement, the defendant has solicited customers to cease purchasing the said goods of plaintiffs and has induced and lured away from plaintiffs some of their customers, and is now engaged in soliciting customers to leave plaintiffs and trade with him; that the sales by plaintiffs to the customers which came to them by virtue of the purchase and agreement amount to many thousands of dollars annually; that the defendant is wholly insolvent and irresponsible and unable to answer in damages for his breach of contract.

By stipulation at the trial the agreement was made a part of the complaint. The defendant answered, denying certain allegations of the complaint, and for an affirmative defense averred that the plainr tiffs had violated the terms of the agreement and that the same had been rescinded by acts of the parties and was no -longer in force. ;, that after such rescission the defendant formed a partnership with another person for the prosecution of the same business carried on by plaintiffs and for the manufacturing of bolognas and sausages. The agreement is also made a part of the answer and is set out in the record in full. So far as is material to the present question, the allegations of the complaint contain the substance of the agreement.

In the disposition of the questions presented by this appeal, it is not necessary to refer more specifically to the agreement itself than we have already done, except as will be hereafter noted. The execution of the agreement is admitted, the violation of its terms by the defendant is not disputed, assuming it to be still in force. We are, therefore, to consider the question as to what relief, if any, plaintiffs were entitled to, upon the case- made by the complaint. By the twelfth clause of the agreement defendant engaged himself not to “ enter into any other business or enterprise, or become in any way or manner interested in any other business without consent in writing of the parties of the second part (plaintiffs), their successors or assigns, first had and.obtained.”

“ Thirteenth. And the party of the. first part further covenants and agrees that he will not enter into any provision or sausage or bologna business, whether carried on by a natural person, corporal tian, joint stock company, or any other person or persons, within a radius of four .hundred and fifty miles of the city and county of Hew York, Within a period of ten (10) years from the day of the date hereof, either as superintendent, director, manager, officer, agent, employee or employer, or in any other individual or representative capacity whatsoever. And. in the event of a breach of the covenants hereof by the party of the first part, he will pay to the parties of the second part, their successors or assigns, the sum of five thousand dollars ($5,000), which is hereby covenanted shall be the liquidated and agreed damages for a breach of said ■ covenants, and, in addition thereto, forfeit all rights, privileges and emoluments under this contract.”

The court below held that plaintiffs were -not entitled to any equitable relief as against the defendant. This ruling is now sought to be supported upon the ground that plaintiffs having fixed the penalty which should attach in the event of a breach of the agreement, they are limited to that measure of indemnity and are not entitled to equitable relief. The learned counsel for the defendant recognizes the stress of the situation, for he concedes that when, by the terms of an agreement, a sum in money is agreed upon as damages for the breach, it does not follow that such remedy is exclusive unless such conclusion appears to have been the intention of the parties. The law applicable to cases of this character has received exhaustive consideration by the Court of Appeals, and, as we .think, the adjudications cover every feature of the case now before us.

This case, in all essential features, is governed by that of Diamond Match Co. v. Roeber (106 N. Y. 473). There, as here, the agreement was not to engage in business which would bring the defendant into competition with plaintiff in the business which the former had sold. There, as here, there was a covenant and stipulation for liquidated damages in the event of a breach of the contract by the defendant, and the point was made that the remedy to enforce the clause for money damage was exclusive of any other. Such claim was pronounced unsound by the court, and the equitable relief by injunction granted by the court below was upheld. Numerous authorities lead to a like result. (Diamond Match Co. v. Roeber, 35 Hun, 421; Phœnix Ins. Co. v. Continental Ins. Co., 87 N. Y. 400.)

It is quite clear, from a consideration of all the clauses of this agreement, that plaintiffs sought to get the entire benefit of defendant’s business which it purchased and to secure the services of defendant himself in connection with it. It was the performance of the entire contract that was contemplated, and not a mere stipulation for damages for its breach, in consequence of which the damages stipulated for would not secure the result sought to be secured by its terms, and it is on account of this feature that equity lays hold of the agreement and enforces it. (Lewis v. Gollner, 129 N. Y. 227; Francisco v. Smith, 143 id. 488; Phœnix Ins. Co. v. Continental Ins. Co., supra.)

There is another feature of this case which makes it still stronger. The complaint alleges that the defendant is wholly insolvent, irresponsible and unable to respond in damages, and that an action at law would, therefore, be an inadequate remedy. If the remedy was limited to the sum provided as damages, and it should appear that the defendant was wholly unable to respond therein, it is quite probable that equity would take cognizance to the extent of enjoining the defendant from prosecuting the business which constituted the breach until the damages should be paid. - But in this case plaintiffs are not limited in remedy, and if they establish the case as it is alleged in the complaint, they will become entitled to the relief sought. '

It follows that the judgment appealed from should be reversed and a new trial granted, with costs to abide the event.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.  