
    Jacob Secular, Respondent, v. Henry Bookstaber, Appellant.
    Second Department,
    March 31, 1910.
    Contract — agreement not to engage in competing business - tract entire — breach^ assignment — defects in assigned cured by subsequent acts of assignor. when con-, claim not
    Where an employee left his master’s service and made arrangements to start in business for himself in competition, and the master, induced him to abandon ■ the plan and to promise not to open a competing store in that neighborhood, in consideration of the master’s agreement to reimburse him for expenses . already incurred "and to pay him a weekly salary,, the contract was entire.
    Where the employee waived immediate payment of the moneys to reimburse him for expenses incurred in starting the new store by accepting checks pay-' able at a later date, there was a breach of the entire contract when the master failed to pay. some of the checks at maturity, and the employee was justified in starting in business for himself. As the employer was .guilty of the breach, neither he nor his assignee can recover- moneys paid to tire employee.
    As,there was a breach of .the contract at the time the claim thereon was assigned, the assignée cannot.recover although his assignor made good the default by subsequently paying the dishonored checks,-
    Appeal by the defendant, Henry Bookstaber, from a ' judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the '5th day of November, 1909.
    
      
      Bennett E. Siegelstein, for the appellant.
    
      I. E. Oppenheim [Henry J. Mayers with him on the brief], for the respondent.
   Burr, J.:

Prior to October, 1908, defendant had been employed for several years as a drug clerk by Jacob Rosenberg, plaintiffs assignor. At that time he left his employ and made arrangements to open a drug store on his own account in the immediate neighborhood. At the solicitation of Rosenberg he consented to abandon his project and return to his service. There is some conflict of evidence as to the terms of the contract then made, but if we accept Rosenberg’s version thereof it was that defendant should be paid $153, the amount of expenses incurred by him in connection with fitting up his new. store, that he should be employed for one year at a salary of $25 a week, and that he should not' open another drug store within four or five blocks of that owned by Rosenberg. In the latter part of January, 1909, defendant left Rosenberg’s employ and did open a drug store upon the same block with him. This action is brought to recover the $153, which it was claimed was paid to the defendant.

The first question in this case is who broke the contract ? The jury found that the defendant was guilty of the breach. We are asked to reverse the judgment entered on their verdict upon the ground that it was against the weight of the evidence. Defendant contends that the contract of employment, and that as to his refraining from engaging in business as Rosenberg’s immediate competitor was an entire one. We think that it was. Defendant further contends that the evidence establishes that Rosenberg’s treatment of him,was such that he was justified in leaving his employ before the end of the stated term. Whatever the fact may be as to the treatment accorded defendant, upon Rosenberg’s own testimony he was clearly at fault so far as that part of the contract is concerned which related to indemnifying defendant for the expenses incurred by him in connection with his business enterprise prior to October, 1908. The sum of one hundred and fifty-three dollars was to be paid- in cash. It was not. It is true that it appears that by receiving a check dated ¡November first defendant waived immediate payment and agreed to wait until the due day of the check. But when that day arrived Rosenberg failed to pay the same, and, with defendant’s consent, the. amount was divided into three parts, represented by three checks, one for fifty-three dollars and two for fifty dollars each, and dated November first, December, first and January first respectively. Tlie fifty-tliree-dollar check was paid in two installments. The other checks were not paid up to January .30, 1909, when defendant left Rosenberg's employ and' started,in-business for'himself, although one of -them was then. past, due two months and the other a -month, . Rosenberg testified^ that defendant never asked for payment of these.cheeks.' This story is incredible and the strong weight of evidence is to the - contrary. Rosenberg admitted on cross-examination that after giving these-checks, and.beforé tlié dates. specified therein as the dates of payment, he closed, his account with the State Bank upon which they were drawn, and he would' not deny. that, they had been deposited for collection and returned unpaid.'' Therefore, when on J an'nary thirtieth defendant left Rosenberg’s employ and started in-business-' for-himself, he was perfectly justified in ddi-ng só. It appears that just before the trial of this action, in November, 1909, Rosenberg did pay these two checks. The conditions Under which,they were paid are not disclosed; but such payment does not in any way inure to the benefit of the plaintiff. The assignment to him of the claim in snit was made in February, 1909, and his right to recover in this action depends upon the rights of the parties as they then existed. At that time Rosenberg was clearly in default for failure to pay two of his checks for fifty dollars each. The claim which, -plaintiff purchased at that time and upon, which this action is -brought was ' worthless.

' The judgment appealed from should be reversed and a new trial ordered, costs to abide the event."

' Hirsohberg, P. J., Thomas, Rich and CARRj JJ.j concurred.

Judgment of the Municipal Court reversed and new trial ordered; costs to abide the event. ...  