
    Bronk v. Riley et al., Commissioners.
    
      (Supreme Court, General Term, Third Department.
    
    December 31,1888.)
    jEQUITY—JUKISDICTIOU—ADEQUATE BEMEPY AT Law.
    In an action to compel the officials of a penitentiary to proceed with a contract of .employment‘of plaintiff to .oyersee the manufacturing and sales of the penitentiary for a commission, on the sales, a preliminary injunction to perform the contract is improper, the remedy by action for damages being adequate, and it is especially improper where the legality of the use of machinery contemplated by the contract is doubtful, and it is no ground for the injunction that no one can be sued at law on the contract.
    Appeal from special term, Albany county.
    Action by Edgar Bronk against John Riley and others, commissioners of the Albany penitentiary commission, and John McEwen, superintendent of the Albany penitentiary, to compel performance of a contract. A preliminary injunction was granted, (2 H. Y. Supp. 266,) and defendants appeal.
    Argued before Learned, P. J., and Landon, J.
    
      I). Cady Herrick, for appellants. Edioin Countryman, for respondent.
   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 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 10 per cent, on the sales. He was to guaranty collections. The superintendent was to hire from plaintiff the necessary machinery at a sped- • fled 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 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. 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. Ho 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 be granted. Preliminary injunctions which only prevent the defendant from doing an act which would render the Anal 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 Mi-. 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. 3 Pom. Eq. Jur. § 1341, and note. This was a contract by plaintiff for personal services. How, in regard to such contracts when they are “special, unique, or extraordinary;” or when the services are to be done by a person having “special, unique, and extraordinary qualifications, as, for example, by an eminent actor, singer, artist, and the like,”—then courts of equity have» assumed jurisdiction. 3 Pom. Eq. Jur. § 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 maybe 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 De Gex, 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 had 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, 1 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. 315; and Hamblin v. Dinneford, 2 Edw. Ch. 529.

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. Ear less have they compelled the other party to carry on the business for which he had engaged the 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 such other brush business, then the 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 inj unction a great actor from playing at another theater, in violation of his 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 saidt 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 lei't his employer, it would ordinarily be easy to supply bis place. Thus it is that Mr. Pomeroy limits the cases to those of “special, unique, and extraordinary qualifications.” We are not awar.e 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 closeup his business, or he might have a personal dislike to the employe. In these and similar cases he could properly discharge the employe, 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 theater to carry on the business.

Possibly the plaintiff may urge a familiar rule, that, in actions for specific-performance, the 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 serviees'on the one side it would be granted on the other. But-we think that it 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 other work than brush-making, 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. How, 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 could have, in any case, is the amount of 10 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 who has broken his contract to say perhaps he might not have found a market. The case of Wakeman v. Manufacturing Co., 101 N. Y. 205, 4 N. E. Rep. 264, 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 commissioners approved it; 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. How, 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 ease of specific performance of a verbal contract for the sale of land, where 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 resulting-from the acts done in execution of the contract, and not upon the contract itself.” Maddison v. Alderson, 8 App. Cas. 475.

We have already said that, where a person engages an employe 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. How, 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 they had no right to do. It has been well said by defendants’ 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 $10 costs, and printing disbursements, and motion for injunction denied, with $10 costs.

Landon, J., concurs.  