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[1, 5] The plaintiff has not made out a case for an injunction against the defendant company. The allegations of fact set forth in the complaint, stripping the complaint of its conclusions of law, which are not to be considered on this motion (De Jong v. Behrman Co., 148 App. Div. 37, 131 N. Y. Supp. 1083), do not show that the defendant company, with respect to soliciting employés of plaintiff, did anything that it did not have the legal right to do. There is no legal restraint upon the use of lawful means to secure help from any source. These means consist of offers of higher wages, improved conditions, and better prospects of advancement, and any restraint in this respect would seriously interfere with the rights of employers and employés alike, and seriously affect the development of new enterprises and the growth and well-being of society. It is a matter of common knowledge that these means are used every day, and any restraint by the courts would interfere with the natural law of supply and demand.

The allegations of fact in the affidavits submitted by the plaintiff as to the conduct of the defendant company in relation to soliciting plaintiff's employés describe nothing that is unlawful, and these allegations and those in the complaint are not strengthened by any characterization of them by the plaintiff as unwarranted or unlawful, or as having been committed with any unlawful design or intention. Warren was not under contract for a definite period, being employed from week to week, and had the right to quit whenever he desired to do so. When he left the plaintiff's factory, he was not guilty of any breach of his contract. There is no allegation in the complaint or in the affidavits that the other employés claimed to have been approached were employed for a definite period. The plaintiff seeks to hold these employés to their negative covenants and otherwise, and yet has given them no definite period of employment, except from week to week. The defendant Warren says that he applied to the defendant company for work, and was not solicited. No relief will be granted for alleged enticement of help, where the employé is not under a definite period of employment (Posner Co. v. Jackson, 223 N. Y. 325, 331, 119 N. E. 573), and even then it must appear that the means used were fraudulent or otherwise wrongful, amounting to a tort (De Jong v. Behrman Co., supra). The right to solicit help of another employer is one of which undoubtedly the plaintiff has availed itself in the past, and, if not fairly and liberally enforced by the courts, would create a servitude of employment that would be intolerable and would soon lead to serious consequences.

The claim to a temporary injunction restraining the defendant company from using any of the trade secrets of plaintiff, or disclosing any communicated to it by defendant Warren, is equally unfounded, as there is no allegation that there has been any such use or disclosure; but, on the contrary, the allegations on the part of the defendants are that they know no such secrets and that none have been disclosed. To entitle plaintiff to such an injunction against the defendant company, it must at least allege, if not show by substantial facts, that secrets of manufacture which have been learned have actually been disclosed. In the original complaint it was not even alleged that the defendant 178 N.Y.S.-2

Warren had learned any of plaintiff's secrets of manufacture, but in the amended complaint this omission is supplied. The defendant company contends that the work in which Warren was engaged, that of coating film, is done by a machine, and is a simple and not a secret process, and this is borne out by the statements of Warren himself. Under the complaint, and the allegations in the affidavits, the plaintiff is not entitled to a temporary injunction restraining the defendant company from soliciting plaintiff's employés as prayed for, or from using or disclosing alleged secrets of manufacture, since it does not appear that any were imparted to it.

[2] The injunction against the defendant Warren's working for the defendant company is not sustained by the proofs submitted, and should be eliminated from the restraining order. The claim of plaintiff is based upon the defendant Warren's contract of employment. The one made December 28, 1911, contained no clause prohibiting his employment after the termination of his contract, but that made October 29, 1915, provides, as stated, that he will not work within the United States, except Alaska, for any manufacturer of photographic supplies within two years after leaving plaintiff's employ, and that he will not reveal any of plaintiff's secrets of manufacture. The twoyear limitation was undoubtedly designed to preserve with more certainty plaintiff's secrets of manufacture, but it also serves to debar the defendant Warren from using the skill and experience which he acquired in his employment, and which are not covered by the prohibition against revealing secrets of manufacture. The defendant Warren was employed by the plaintiff for a period of about ten years, and by the clause in the contract referred to he is prohibited for two years from earning a livelihood in his chosen occupation, except in Alaska or abroad. It is no answer to the harshness of this provision to say that he can work at something else. Employés such as he cannot easily shift from one occupation to another, and such a provision operates to keep employés bound hand and foot to their employers, so that they cannot better their occupational circumstances, and is for that reason a serious restraint upon employment. The common law prohibited such contracts, and this rule has been modified only to a limited extent. The modification, however, has not gone to the extent of legalizing all contracts, though mutual in their terms and based upon a consideration, which limit the right of an employé to enter employment in the same line of business to which the contract relates.

"As a general rule, equity will not interfere to restrain by injunction a violation of a restrictive covenant in relation to personal services." Strobridge Litho. Co. v. Crane, 12 N. Y. Supp. 898, 899.1

There are certain exceptions, in which equitable relief by injunction will be granted; but in order to secure that relief it must be plain that the case comes within the exceptions, and does not fall within the general rule which is designed to protect society against the evils of unjust and unreasonable contracts of employment. The law favors

1 Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 58 Hun, 611.

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the growth of new and additional enterprises, and is opposed to a monopoly of manufacture, trade, business, or employment. It encourages the fullest and fairest opportunity for business enterprises to develop, and the greatest freedom of action of employés in seeking to better their employment, and condemns, both by the general opinion of judges represented by the common law and by public opinion, represented by federal and state statutes, any combination operating to interfere with the free development of these principles.

After the bulk of the cases upon this subject have been examined, the general conclusion is irresistible that a temporary injunction will be granted in this class of cases only where it is necessary, reasonable, and equitable to protect the interest of a covenantee.

"A party is never entitled to an injunction as a matter of right. Whether a court of equity will exercise its power in granting such relief always depends upon the facts peculiar to each case. It will never be granted, unless the court, in the exercise of a sound discretion, concludes that such relief is necessary in order to prevent irreparable injury." Mahler Co. v. Mahler, 160 App. Div. 548, 145 N. Y. Supp. 764.

Upon this broad principle all of the cases may be harmonized, although there may appear in isolated cases to be an apparent error of judgment in applying this principle. The principle upon which equitable relief is denied, and the absence of necessity and the lack of reasonableness which forecloses injunctive relief, varies with the facts. and circumstances of each case. In some cases the rank of the employé is emphasized, and in other cases the absence of any other relief or the damage that may be occasioned is the determining factor. "Damage done, rather than rank of employé," said Judge Pound in one case, will control the right to injunctive relief in these cases. Witkop & Holmes Co. v. Great A. & P. Tea Co., 69 Misc. Rep. 90, 124 N. Y. Supp. 956. In some cases the contract has been refused enforcement because of its want of reciprocal obligations (Lawrence v. Dixey, 119 App. Div. 295, 298, 104 N. Y. Supp. 516; Dockstader v. Reed, 121 App. Div. 846, 106 N. Y. Supp. 795; Star Co. v. Press Pub. Co., 162 App. Div. 486, 147 N. Y. Supp. 579), or where the provisions of the contract sought to be enforced were harsh and inequitable (Gilbert v. Wilmer, 102 Misc. Rep. 388, 168 N. Y. Supp. 1043; Witmark & Sons v. Peters, 164 App. Div. 366, 149 N. Y. Supp. 642; Tolman v. Mulcahy, 119 App. Div. 42, 103 N. Y. Supp. 936; Mahler v. Mahler, supra). Other cases have refused enforcement of such a covenant, because a substitute could be readily obtained for the delinquent employé. W. J. Johnston Co. v. Hunt, 66 Hun, 504, 21 N. Y. Supp. 314; Dockstader v. Reed, supra. In still other cases the denial of the relief was based upon the conclusion that the negative covenant against accepting other employment was void. Witkop & Holmes Co. v. Boyce, 61 Misc. Rep. 126, 112 N. Y. Supp. 874; Gilbert v. Wilmer, supra; W. J. Johnston Co. v. Hunt, supra.

In all of the cases where relief has been granted by injunction under clauses similar to that involved in this case, the court reached the conclusion that the covenantee was entitled to relief because under the facts and circumstances of the case it was necessary, reasonable, and

equitable that the relief should be granted. Thus covenants made, upon selling a business, not to enter into a competing business, have been sustained, as such relief was necessary to preserve in the vendee the fruits of the sale. Tode v. Gross, 127 N. Y. 480, 28 N. E. 469, 13 L. R. A. 652, 24 Am. St. Rep. 475; Wood v. Whitehead Bros. Co., 165 N. Y. 545, 59 N. E. 357; Diamond Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. 419, 60 Am. St. Rep. 464. Covenants against soliciting special lists of customers of a former employer have been sustained uniformly, as otherwise an employé might seriously impair, if not destroy, the business of his former employer. Witkop & Holmes Co. v. Great A. & P. Tea Co., supra; Davies v. Racer, 72 Hun, 43, 25 N. Y. Supp. 293; Witkop & Holmes Co. v. Boyce, supra; Mutual Milk & Cream Co. v. Heldt, 120 App. Div. 795, 105 N. Y. Supp. 661; Mutual Milk & Cream Co. v. Prigge, 112 App. Div. 652, 98 N. Y. Supp. 458; N. Y. Wet Wash Laundry Co. v. Unger, 170 App. Div. 761, 156 N. Y. Supp. 598; People's Coat, Apron & Towel Supply Co. v. Light, 171 App. Div. 671, 157 N. Y. Supp. 15; Eastern N. Y. Wet Wash L. Co. v. Abrahams, 173 App. Div. 788, 160 N. Y. Supp. 69.

Persons performing unique, special, or extraordinary services, such as great actors, artists, and musicians, have been restrained, since their places cannot be filled, and injunctive relief is usually the only substantial relief that can be obtained. Lumley v. Wagner, 1 De G., M. & G. 604, and similar cases. Likewise persons who discharge important relations toward a business enterprise, such as managers and experts, will be enjoined, as their places cannot readily be supplied. McCall Co. v. Wright, 198 N. Y. 143, 91 N. E. 516, 31 L. R. A. (N. S.) 249; Magnolia Metal Co. v. Price, 65 App. Div. 276, 72 N. Y. Supp. 792; Todd Protectograph Co. v. Hirschberg, 100 Misc. Rep. 418, 165 N. Y. Supp. 906. In many other cases that do not fall under these well-recognized heads the courts have restrained the employé from disclosing or using trade or confidential information, but have refused to restrain him from entering other employment, although contrary to the terms of his contract. Witkop & Holmes Co. v. Boyce, supra; Gilbert v. Wilmer, supra; W. J. Johnston Co. v. Hunt, supra; Tolman v. Mulcahy, supra; N. Y. Wet Wash Laundry Co. v. Unger, supra; Clark Paper & Mfg. Co. v. Stenacker, 100 Misc. Rep. 173, 165 N. Y. Supp. 367, modified 183 App. Div. 915, 170 N. Y. Supp. 1073. The question in this case, therefore, is, assuming this clause of the contract to be valid, whether or not a temporary injunction is a just and proper exercise of the discretion of the court, and this depends upon whether or not such relief is necessary, reasonable, and equitable under the facts and circumstances of the case.

[3] The facts in this case show that the services rendered by the defendant Warren are not such that they cannot be replaced readily by the plaintiff, and that the enforcement of the restrictive covenant as to employment is unnecessary to protect the plaintiff. It appears that the plaintiff has in its extensive plant 13 assistant coaters, which was the position occupied by the defendant Warren, with head coaters, the number of which is not stated. The defendant company has been producing motion picture film, and of course has emulsion coaters,

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just as the plaintiff has these coaters in its plant. There are other film manufacturers, all of whom must employ emulsion coaters, and the same line of work is performed by those who are engaged in the manufacture of photographic paper, in which there is a much greater competition than there is in the manufacture of motion picture film. It is apparent that there must be in this country and in this state a large number of men who are familiar with the work of coating photographic paper and motion picture film, and that this employment is not a unique, special, or extraordinary employment, or even one requiring individual or peculiar qualifications, as those terms are understood in the law of this case. A coater in a photographic establishment does not sustain the relation to that establishment that a great chemist or a great manager or other expert does toward a manufacturing plant. He is, for the purposes of the controversy in this action, so far as the proofs show, and for the purposes of temporary injunctive relief, an ordinary and usual employé. The affidavits show that the process of coating is a comparatively simple one, and that the plaintiff can readily secure all the assistant coaters it needs from its other departments, and that the enforcement of the restrictive covenant is not necessary to its protection in this respect. Nor is it necessary that the plaintiff should have a specific performance of the negative covenant against other employment to protect its secrets of manufacture. The defendant Warren cannot be enjoined from using his skill and experience, and these secrets can be revealed, if there is a disposition to do so, quite as effectually without as with employment on his part.

The enforcement of the restrictive covenant, under the circumstances of this case, considering the interests of the parties and the public, would also be unreasonable. 13 C. J. 473. The law is based upon reason and common sense, and not upon arbitrary rules. In the first place, the defendant company has gone beyond the experimental stage of the manufacture of motion picture film, and is actually producing large quantities of such film. It alleges that it is producing 3,000,000 feet per month, and that it has orders for more than it can fill. It has been operating its plant for some time, has a very large investment in it, and claims to be producing as high a grade of film as the plaintiff. The plaintiff, on the other hand, emphasizes that it occupies 150 acres of land and has 100 or more buildings, with 8,000 or more employés, and yet contends that its business will be affected if an assistant emulsion coater, earning $26 a week, with some additional allowances, is permitted to work for a competitor. The original complaint states that since 1914 the plaintiff has manufactured practically all of the motion picture film, amounting to millions of feet per month, used in the United States, and a large amount of motion picture film used 'elsewhere. The amended complaint omits this statement, but it is by reference repeated in one of the affidavits, and this motion is made upon both the original and the amended complaint, and the moving papers on this motion allege that the plaintiff is, and has been declared by the courts to be, a monopoly, and that the contract under review in this case is designed to perpetuate that monopoly.

It is evident that the plaintiff's business will not be seriously affect