#### The Witkop & Holmes Company, Plaintiff, *v.*The Great Atlantic and Pacific Tea Company, Darcy L. Tracy and Louis Wahl, Defendants.

(Supreme Court, Erie Equity Term,

July, 1910.)

Good will — Injuries to — Remedies — Injunction.

Injunction — Scope and extent of relief — Damages.

Where employees of plaintiff, a corporation engaged in retailing certain goods, were occupied in soliciting orders from customers whose names and addresses plaintiff had furnished them and in delivering goods upon the orders they secured, and were hired away from plaintiff *by*a competing corporation for the purpose of having them solicit and transfer the custom of those whose names appeared on plaintiff’s trade lists, the plaintiff is entitled to an injunction restraining such employees from calling upon the customers named in such lists and also restraining the competing corporation from obtaining the benefit of such lists and trade by *91so hiring its employees for such purpose. Such practices constitute unfair competition which equity will restrain.

In an action for injunction and damages, in the absence of proof of actual damages to the plaintiff, the court will not render a judgment for exemplary damages, but is limited to the granting of injunctive relief.

Action for an injunction to restrain defendant corporation from employing plaintiff’s drivers for the purpose of securing plaintiff’s trade and for damages.

Sullivan, Bagley & Wechter (George Clinton, of counsel), for plaintiff.

James A. Magoffin (A. Moot, of counsel), for defendants.

Pound, J.

The material facts and the law of this case, aside from the question of damages, are stated and discussed in Witkop *&*Holmes v. Boyce, 61 Misc. Rep. 126; 112 N. Y. Supp. 874; 64 Misc. Rep. 374; 118 N. Y. Supp. 461, and a restatement thereof is unnecessary. That was a case against the driver only. The competing corporation is also a party defendant to this action as is also its active manager in the transactions herein complained of.

The recent case of McCall Co. v. Wright, 198 N. Y. 143, sustains, I think, the reasoning of Wheeler, J., in the Boyce case, *supra,*as to the power >of the court broadly to 'restrain the plaintiff’s driver from breach of his contract not to enter the service of the competing defendant. To be sure, the McCall case seems to reserve the question as to how far the rule of that case will be applied to inferior positions; but the damage done, rather than the rank of the employee, would probably control. The life of the contract of the defendant driver in this case is, however, spent; and, as such relief would now be of little value, I prefer to place my decision on other grounds.

Justices Wheeler and Brown both hold in the Boyce case, *supra,*that plaintiff’s right to injunctive relief as against the driver is not measured by the written contract, but that, independently thereof, he will be restrained from canvassing and soliciting trade from plaintiff’s customers, formerly *92served by Him from plaintiff’s lists of names and addresses, for the benefit of a competing concern.

It follows that defendant tea company and its officers and agents will be restrained from obtaining tbe benefit of plaintiff’s lists of customers by hiring drivers away from the plaintiff for the purpose of having them canvass and solicit trade from the plaintiff’s customers formerly served by them. That this was done in the case of Wahl and other drivers admits of no doubt.

The defendant tea company undoubtedly has the right to solicit the trade of plaintiff’s customers and to obtain a list thereof by using opportunities for observation open to all. Plaintiff had no vested property rights in the trade of such customers. The vice of defendants’ position is that it obtained the lists, or copies thereof, by hiring the drivers and made the lists of value to itself by sending the drivers to transfer, if possible, the trade from their former employer to their new employer. In other words, although the end might be lawful, the means adopted were unlawful.

This is 'a case, not of malicious interference with contracts where equity refuses to interfere unless the services are of a unique and special character, but of unfair competition. McCall Co. v. Wright, *supra.*The conduct of defendants amounts to an unlawful obtaining and use of a trade list (Penal Law, § 553, subds. 6, 7), a carrying to a business rival the benefit of business secrets acquired while in the employ of plaintiff, and 'as such should' be enjoined.

A reason why this relief is due to plaintiff is that, although defendants’ conduct is grossly unfair, unjust and injurious, the damage to plaintiffs property rights is incapable of being 'ascertained and an action at law would be inadequate. Ho actual damages were proved on the trial.

The court has no power to impose a fine under the name of exemplary damages in such a-case, but is limited to the granting of injunctive relief only.

Plaintiff may have judgment as herein indicated, with costs.

Judgment for plaintiff.