
    John Francis Maher et al., Resp’ts, v. Della Garry et al., as Executors, etc., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 14, 1895.)
    
    Injunction — Breach op contract.
    An injunction, restraining executor's from terminating or modifying a contract between plaintiffs and testator, under which a business has been' conducted for several years, is properly continued pendente lite, where a question, which lies at the foundation of the case, will have to be determined on the motion, and it would be well-nigh impossible, if the business should be broken up and destroyed in the meantime, to compensate the plaintiffs in damages in case they should establish their right to have the contract specifically performed.
    Appeal from an order continuing an injunction during the pendency of the action.
    
      Samuel Untermyer, for app’lt; Frederick R. Kellogg, for resp’ts.
   Per Curiam.

— It is clear that in case the written contract under seal, entered into May 14,1892, between the defendants’ testator and the plaintiffs, has not been modified, this action cannot be maintained. It is alleged in the complaint:

“ That the arrangement set forth in the complaint was first suggested by the said Thomas Garry, and was made and entered into at his request. That after the said contract was drafted and presented to these plaintiffs for signature, said plaintiffs, in the presence of said Thomas Garry and of other witnesses, objected to signing the said contract in its then existing form, their objection being specifically based upon the paragraphs marked ‘ Eleventh ’ and 1 Twenty-third.’ That the said plaintiffs, and each of them, positively refused to become parties to any agreement on such conditions. That thereupon said Thomas Garry, after consideration of the matter, stated to the plaintiffs, in the presence of witnesses, that, if the plaintiffs would sign the contract in the form as. drawn, he would have a codicil attached to his will providing that his executors should have no right or power to exercise or avail themselves of any power set forth in the agreement, or any part thereof, to terminate, rescind, annul, or alter said contract as long as the plaintiffs should comply with the duties imposed upon them thereby. That thereupon the said plaintiffs consented to and did sign the said contract, stating distinctly to the' said Thomas Garry, in the presence of witnesses, that they did so solely in reliance upon his said promise, and on the condition that he should fully carry out the same. That in signing said contract said plaintiffs and each of them, did so rely.”

An answer has not been served. The equities of the complaint are not denied, neither is this allegation controverted by affidavits. It is supported in behalf of plaintiffs by an affidavit of one of the executors and by the draftsman of the contract, who testify that they were present and heard the oral agreement made which is averred in the paragraph of the complaint above quoted. Unless this allegation is denied in the answer, the question whether the oral modifications can be proved by the testimony of witnesses who were present when made will not arise. The question will be, is such an oral modification valid? This question lies at the foundation of the case, aud ought not to be determined on a motion, unless so clear as to admit of little doubt. If the allegations contained in the paragraph quoted are not to be denied, the defendants can raise the question of their sufficiency by demurrer. The injunction does not change, but preserves, the relation of the parties in their business as establithed by the contract under which it has been carried on for the past three years. Should the plaintiffs establish the right to have the modified agreement specifically performed, and in the meantime should the business be broken up and destroyed, it would be well-nigh impossible to compensate them in damages.

Under the circumstances, we think the order should be affirmed, with $10 costs and disbursements.  