
    Apollo Stationery Co., Inc., Plaintiff, v. Frank Pilmar et al., Defendants.
    Supreme Court, Special Term, New York County,
    April 1, 1958.
    
      
      Irving Abramson and Everett E. Lewis for plaintiff.
    
      S. Sidney Smith, Norman A. Haft and Jack Lindner for defendants.
   Mobbis E. Spegtob, J.

Motion for a temporary injunction is denied and the stay vacated. Plaintiff seeks to enjoin a former employee and others from soliciting its customers or doing any business with them, alleging that defendant Pilmer has obtained a listing of its customers in an improper manner and for the purpose of competing with it.

Plaintiff’s citations are clearly distinguishable from the present case, for example; In Conviser v. Brownstone & Co. (209 App. Div. 584) the defendant used a list of plaintiff’s customers dishonestly obtained by defendant from one of plaintiff’s employees ; in Duane Jones Co. v. Burke (306 N. Y. 172) there was clearly a conspiracy to steal plaintiff’s customers originating at a time when certain of the defendants were officers of the plaintiff corporation and owed it a fiduciary duty.

The Court of Appeals pointed out in Town & Country Service v. Newbery (3 N Y 2d 554, 557) that the Duane Jones case involved unusual facts. Likewise the Town & Country case involved unusual facts. A customers’ list had been formulated by plaintiff therein by the making of 200 to 300 telephone calls to the public in general to obtain every 8 to 12 customers (p. 560), which customers were not at advertised locations (p. 558) and in the Town & Country case the plaintiff’s customers were the only persons solicited by defendants (p. 560). There is a clear distinction between cases where a former employee solicits customers of his former employer who are openly engaged in business in advertised locations and his soliciting unadvertised customers who became known to the employee only because of information obtained during his employment (Town & Country Service v. Newbery, 3 N Y 2d 554, 558, supra).

There is a sharp question of fact presented by the affidavits as to the source of defendant Pilmar’s listing of persons to whom he sent announcements or whom he solicited directly, and, therefore, a temporary injunction will not be granted (Geed v. Braunsdorf, 277 App. Div. 1001). Plaintiff may settle an order providing for an early trial.  