
    Voorhees and Hobart, Inc., Respondent, v. John W. Hobart, Appellant.
    Fourth Department,
    May 5, 1937.
    
      William S. McGreevy, for the appellant.
    
      Lyman B. Lewis, for the respondent.
   Cunningham, J.

The plaintiff claims that by adoption and ratification it has become entitled to enforce a contract in which the defendant agreed not to conduct a furniture and undertaking business in the counties of Yates and Ontario for a period of ten years. Another provision of that contract requires the plaintiff to employ the defendant for a period of ten years.

The plaintiff may not recover in this action unless it shows that it has on its part performed the terms of the contract. (Shubert Theatrical Co. v. Gallagher, 200 App. Div. 596.)

There is a sharp dispute between the parties as to whether the defendant voluntarily relinquished his employment or was discharged by the plaintiff without cause.

When the facts upon which the right to a final judgment depends are a matter of substantial controversy between the parties, an injunction pendente lite will not be granted, but the rights of the parties will be determined only after a trial of the issues. (Morrin v. Structural Steel Board of Trade, Inc., 231 App. Div. 673.)

Furthermore, the plaintiff has failed to show that the services of the defendant are unique or extraordinary in character and, therefore, it is not entitled to a judgment restraining the defendant from engaging in a business similar to the one conducted by plaintiff. (Restatement of the Law of Contracts, § 380, subd. 2-d; Shubert Theatrical Co. v. Gallagher, supra; Corpin v. Wheatley, 227 App. Div. 212.)

For these reasons the orders appealed from are reversed upon the law, with ten dollars costs and disbursements, and the motion for a temporary injunction is denied, with ten dollars costs.

All concur; Thompson, J., having been present at the argument of said appeal, but having died on the 7th day of April, 1937, without having taken any part in the determination of this appeal. Present ■— Sears, P. J., Edgcomb, Lewis and Cunningham, JJ.

Orders reversed on the law, with ten dollars costs and disbursements, and motion for an injunction denied, with ten dollars costs.  