
    Harriet A. Francisco, Resp’t, v. Charles A. Smith, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed November 27, 1894.)
    
    1. Contract—Validity—Restraint op-trade.
    Court of equity -will enforce an agreement by tbe vendor, upon the sale of a business and its good will, not to engage in a similar business in the same place for a specified period.
    2. Same—Assignee.
    An assignee of such contract may enforce it just as the assignor could have done, if he had retained the business.
    Appeal from judgment of the general term of the supreme court in the fourth judicial department, entered upon an order, which reversed a judgment in favor of defendant.
    
      John D. Beclcwiih, for app’lt; Myron G. Bronner, for resp’t.
    
      
       Affirming 50 St. Rep. 772.
    
   Earl, J.

It is unquestioned that the agreement entered into by the defendant not to engage in the bakery and confectionery business in Little Falls during the period of five years was legal and valid, and that courts of equity will enforce such agreements for the protection of the business to which they relate. Such an agreement is a valuable right in connection with the business it was designed to protect, and going with the business it may be assigned and the assignee may enforce it justas the assignor could have enforced it if he had retained the businesss. Diamond Match Co. v. Roeber, 106 N. Y. 473; 11 St. Rep. 47. The agreement can have no independent existence or vitality aside from the business. If Mr. Francisco had not disposed of the business, and had not himself carried it on, there would have been nothing for the agreement to operate upon—no grounds for equitable relief against a breach thereof, or for recovery in an action at law of anything except possibly nominal damages. He would not have lost the benefit of the agreement by omitting, for any definite time during the five years, to carry on the business. The agreement would stand for his protection at any time when he resumed or entered upon the business. It may be assumed, and indeed it is conceded, that he retained the business until he made the assignment to the plaintiff, May 25th, 1891. At that date there was nothing which prevented him from resuming and carrying on the business, and then having the full benefit of the defendant’s agreement. But before that date the plaintiff had purchased the property, tools and fixtures connected with the business, and was in possession of the place where the business had been carried on by the defendant and subsequently by her husband. At that date he assigned to her the business and good will thereof, and all his rights under the defendant’s agreement, and thus she took his place and became fully entitled to all the benefits of the agreement. Mr. Francisco having the conceded right to sell all the property and the business together, and to assign the agreement at the same time, what is there in reason or principle that precludes him from first disposing of the property and place of business, and afterwards selling and assigning to the same person the business and the good will thereof, together with the agreement made for the protection of the business? We can perceive nothing. The assignment of the agreement goes with' ana is connected with the business as much in the one case as in the other.

But still further. Before the 25th day of May, 1891, the wife owned the property connected with the business and the husband was carrying on the business in her name, largely for his benefit— that is, he and his family were to be supported out of the proceeds thereof. Thus he had a real interest in the business carried on, and we see no reason to doubt that he had such an interest as entitled him to enforce the agreement in his own name for his own protection. Under such circumstances he could assign the busi-' ness and the good will thereof, together with all his rights under the agreement to the plaintiff, and by such assignment she became entitled to and occupied the position acquired by him by his purchase from the defendant, and to the protection of his agreement.

There is, therefore, nothing unreasonable in the claim of the plaintiff to enforce the agreement, and there can be no objection to the jurisdiction of a court of equity to protect her against the violation thereof.

It follows that the order of the general term should be affirmed and judgment absolute be given against the defendant, with costs,

All concur. Judgment affirmed.  