Appeal from Special Term, New York County. Action by the McClure Newspaper Syndicate against the Times Printing Company of Seattle. From an order granting a motion to set aside service of summons, plaintiff appeals. Order reversed, and motion denied. Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ. Charles A. Brodek, of New York City, for appellant. MCLAUGHLIN, J. This appeal is from an order setting aside the service of a summons. It was served upon J. T. Beckwith, president of the S. C. Beckwith Special Agency, a domestic corporation. After its service the defendant made a motion to vacate and set aside the same, on the ground that neither Beckwith nor the S. C. Beckwith Special Agency was a person upon whom service could legally be made. Before the determination of the motion the defendant served an answer, which contained a recital that it appeared specially and for the sole purpose of contesting the service of the summons and the jurisdiction of the court. Subsequently an order was entered, from which the appeal is taken, granting the motion to set aside the service of the sum mons. [1-3] The service of the answer raised an issue in the action as to the court's jurisdiction, and this was equivalent, at least so far as that issue was concerned, to a general appearance in the action. A voluntary general appearance by a defendant in an action, for any purpose, is equivalent to personal service of the summons upon him. Code Civ. Proc. § 424; Freeman v. Freeman, 126 App. Div. 601, 110 N. Y. Supp. 686. If the defendant did not intend to subject himself to the jurisdiction of the court, he could have appeared specially for the purpose of raising that question by motion, or he could have allowed the plaintiff to take judgment by default, since no judgment without service of process in some form could bind him, and in that case the question of jurisdiction would protect him at any stage of the proceeding for its enforcement. Reed v. Chilson et al., 142 N. Y. 152, 36 N. E. 884. But he could not put in an answer in the action, raise an issue, and prevent a judgment being taken against him by default, in case of an adverse decision on the motion, and then claim, in case the motion were decided in his favor, that the answer had no effect. Any defect, therefore, in the service of the summons here in question, was waived when the defendant interposed an answer. The court thereby obtained jurisdiction, and the motion to set aside the summons thereafter was improper. The order appealed from, therefore, must be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur. (164 App. Div. 142) MAGID et al. v. TANNENBAUM. (No. 6227.) (Supreme Court, Appellate Division, First Department. October 23, 1914.) 1. INJUNCTION (§ 60*)-CONTRACTS-PERSONAL SERVICES. Where a contract for the personal employment of a salesman for a tailor to the trade for a specified term stipulated that the salesman should not enter the employment of any other person in the same business, or engage in the business himself, for one year after the expiration of the term, the employer is not entitled to enjoin the employé from accepting such employment within the prohibited term, where there is no showing that the services of the employé were of special value, or that he knew any trade secrets which he might reveal to his new employer, especially where the contract provided for liquidated damages in case of breach, and the employer therefore had an adequate remedy at law. [Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 117-119; Dec. Dig. § 60.*] 2. WORDS AND PHRASES-"TAILORS TO THE TRADE." The business of "tailors to the trade" consists in cutting, making, and trimming garments for merchant tailors in different parts of the United States. Appeal from Special Term, New York County. Action by Abraham Magid and another against Michael Tannenbaum. From an order granting an injunction pendente lite, the defendant appeals. Reversed, and motion denied. Argued before INGRAHAM, P. J., and MCLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ. Jacob I. Berman, of New York City, for appellant. A. Loeb Salkin, of New York City (M. Michael Edelstein, of New York City, of counsel), for respondents. CLARKE, J. [1, 2] The plaintiffs are engaged in carrying on a business known as "tailors to the trade," which said business consists of cutting, making, and trimming garments for merchant tailors in different parts of the United States. They entered into a written contract with the defendant to take him into their employ as outside and traveling representative for a period beginning July 19, 1913, and ending on the 1st day of July, 1914, at a weekly salary of $25, and, in addition, 3 per cent. of the net profits of their business, to be ascertained by them on the 1st day of January, 1914, and on the 1st of July, 1914. The contract contained this clause: "Fourth. The party of the second part hereby further covenants and agrees that for a period of time commencing from the day hereof, up to and including the 1st day of July, 1915, the said party of the second part will refrain from entering the employ of any individual or individuals, firm or corporation other than the parties of the first part hereto, which said individual, firm or corporation engages in the business known as 'tailors to the trade,' consisting of cutting, making and trimming garments for the merchant tailors' trade in any part of the United States of America, except the state of California, and that he will not for himself, directly or indirectly, with or without a partner, or in connection with a corporation or joint-stock association, engage in such business of tailors to the trade, in any part of the United States, except the state of California for said period of time." It further provided: "In view of the extreme difficulty, if not impossibility, of ascertaining the actual damages which the parties of the first part may sustain by reason of For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes the failure on the part of the party of the second part to faithfully perform all or any of the terms and conditions of this contract, it is hereby mutually agreed by and between the parties hereto that, in the event of any such breach or failure on the part of the party of the second part to faithfully perform any or all of the terms and conditions hereinbefore set forth, the party of the second part will pay to the parties of the first part the sum of one thousand dollars as liquidated damages." It appears from the papers that the plaintiffs' business is a common business, in which at least 100 other concerns are engaged at this time in the city of New York under precisely the same conditions; that there is nothing special, unique, or extraordinary in the position or services to be rendered by the defendant, as his qualifications are the same as thousands of others employed in the city and elsewhere doing the same work. It appears that the defendant had no access to the books of the business, and that there were no trade secrets, as the business was a common one, and that he consequently came into possession of no trade secrets; that his term of employment expired on July 1, 1914; that plaintiffs did not desire to employ him any further, and, in fact, employed another man before his term expired to do the same class of work which the defendant was engaged in. Before he left the plaintiffs, he informed them that, as they would no longer employ him, he would seek other employment, and they made no objection thereto. After the expiration of the term he did secure other employment in a similar line of business, and thereafter the plaintiffs instituted this suit in equity, and procured an injunction pendente lite which restrained. the defendant during the pendency of this action and until further order of this court, but in no event beyond July 1, 1915, from entering the employment of any individual or individuals, firm, or corporation other than the plaintiffs, engaged in business known as "tailors to the trade” in any part of the United States of America, except the state of California, and not to reveal any of the trade secrets belonging to the business of the plaintiffs, used by them in the prosecution of their business. That is, the defendant having completed the term of his employment, the plaintiffs, being under no obligation to retain him, and not desiring so to do, by this injunction prevent him for a year from pursuing his trade. Even where an employé has breached his contract of employment during the term thereof, a court of equity will not interfere by injunction, unless the services of such employé are so special, unique, or extraordinary that in the event of the breach plaintiff would suffer irreparable damages, which could not be ascertained or estimated in an action at law. Even in the case of contracts of actors and singers, where a clause is inserted that the performer admits that his services are special, unique, and extraordinary, and consents that in case of breach an injunction might issue, the court has not felt itself bound to act upon that admission and consent, but has looked into the facts and refused to grant the injunction. In Dockstader v. Reed, 121 App. Div. 846, 106 N. Y. Supp. 795, the court said: "Whether equity will intervene to restrain by injunction the violation of a restrictive covenant in relation to personal services depends in large measure upon whether a substitute for the employé can readily be obtained, and whether such substitute will substantially answer the purpose of the contract." To the same effect, Hammerstein v. Mann, 137 App. Div. 580, 122 N. Y. Supp. 276. In Kessler Co. v. Chappelle, 73 App. Div. 447, 77 N. Y. Supp. 285. Mr. Presiding Justice Van Brunt said: ** "There is nothing in these papers which tends to show any special, unique, or extraordinary services upon the part of the defendant; on the contrary, they show that others occupy the same relations to the firm and are performing similar duties. While the rule undoubtedly is that the rendition of skilled services to others may be prevented by injunction, yet we fail to find any rule which allows an injunction of this kind unless there is something special, unique, or extraordinary in the services which the defendant under his contract is called upon to render." It is true there are cases which uphold injunctive relief by an employer after the severance of his relation with his employé, who endeavors to make merchandise of the latter's secrets, learned in the course of his employment; and like relief has been granted in cases where a person has sold a business and the good will thereof, and received the consideration therefor, and has agreed, as a part of the consideration which he has given for the price paid him, not to compete with his vendee. In our opinion such cases do not apply to the case at bar, because it does not appear that the plaintiffs had any trade secrets which the defendant had acquired, and, as pointed out in the Kessler & Co. Case, supra : "The defendant in this action is not going into a champagne business on his own account. He is being hired by another house in his capacity as salesman, and as salesman only." This case is further differentiated from those in which an injunction has been granted, because, if there was a valid contract not to enter a similar employment for a year after his employment with the plaintiffs ceased, the contract itself provided for liquidated damages in case of such breach, and so the plaintiffs would have an adequate remedy at law. In our opinion the record fails to disclose proper and sufficient grounds to warrant the issue of the injunction pendente lite. The order appealed from should therefore be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All (Supreme Court, Appellate Division, Second Department. October 16, 1914.) 1. NEW TRIAL (§ 101*)-NEWLY DISCOVERED EVIDENCE-WHAT CONSTITUTES. Evidence of testimony given by plaintiff in supplementary proceedings brought against him is not newly discovered evidence warranting a new trial to defendant, where defendant was also examined in the proceeding and discussed with the attorney for the judgment creditor the testimony of plaintiff. [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 205, 206; Dec. Dig. § 101.*] 2. NEW TRIAL (§ 102*) -NEWLY DISCOVERED EVIDENCE-DILIGENCE. A defendant, who knew that a public record contained evidence in his favor, cannot be granted a new trial on the ground of newly discovered For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes evidence contained in the record, where any sort of diligence would have enabled him to have produced it at the trial. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 207, 210-214; Dec. Dig. § 102.*] 3. NEW TRIAL (§ 108*)-NEWLY DISCOVERED EVIDENCE-SUFFICIENCY. A new trial will not be grauted on the ground of newly discovered evidence, where it is not likely that such evidence would cause a different result. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 226, 227; Dec. Dig. § 108.*] 4. NEW TRIAL (8 104*) - NEWLY DISCOVERED EVIDENCE - CUMULATIVE EVI DENCE. Where plaintiff claimed that a release procured by defendant was signed by him without knowledge of its contents, because he could not read or write, and defendant and others testified that plaintiff could read and write, newly discovered evidence showing that, when examined in another suit, plaintiff might have read aloud the contents of a check, is at the most only cumulative, and will not warrant a new trial. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 218-220, 228; Dec. Dig. § 104.*] 5. NEW TRIAL (§ 108*)-NEWLY DISCOVERED EVIDENCE-RIGHT TO. In an action for breach of a contract entered into when plaintiff conveyed to defendant property, on which buildings had been erected, in consideration of the agreement that defendant, upon selling the property, should make stipulated payments to plaintiff, newly discovered evidence that, in another suit, plaintiff testified that his property was mortgaged, that defendant was going to foreclose, and that for that reason he made the conveyance, is not in conflict with the claims of plaintiff, and does not authorize a new trial. [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 226, 227; Dec. Dig. § 108.*] Appeal from Special Term, Kings County. Action by Robert Grafton against John Oscar Ball. From an order granting defendant a new trial, plaintiff appeals. Order reversed, and verdict for plaintiff reinstated. See, also, 148 N. Y. Supp. 1117. Argued before JENKS, P. J., and BURR, RICH, STAPLETON, and PUTNAM, JJ. Martin T. Manton, of New York City (Vine H. Smith, of New York City, on the brief), for appellant. Á. P. Bachman, of New York City, for respondent. RICH, J. This action is to recover damages for the alleged breach of a contract. It appears that the plaintiff was the owner of certain vacant lots on Bergen street, in Brooklyn, and was a practical contractor and builder. He and two other men, Heaney and Conolly, under the name of the Red Hook Realty Company, were interested in erecting houses upon said lots; the plaintiff contributing the lots and his practical experience as against their money. Later the defendant became the financial backer of the parties and acted as the plaintiff's attorney in some of their transactions. Differences arose between the parties, and Heaney and Conolly retired from the company; their interests being purchased with money furnished by defendant, who *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |