Abalene Pest Control Service, Inc. v. Powell (8 A.D.2d 849, 1959)

In an action by the assign'ee for a contract of employment to restrain a former employee of the assignee from violating the provisions of restrictive covenants in the contract, and for other relief, the appeal is from an order denying appellant’s motion to adjudge respondent guilty of contempt of court for allegedly violating an injunction pendente lite restraining him from servicing any customers located in specified counties, formerly serviced by appellant’s assignor and which have been solicited by him, and from soliciting any other customers located in said counties, which were formerly serviced by appellant’s assignor. Order affirmed, without costs. Although the Justice who made the temporary injunction order found that respondent had solicited a number of customers formerly serviced by appellant’s assignor, that finding-made on an application for a provisional remedy was not binding on respondent on this motion. (Bannon v. Bannon, 270 N. Y. 484). There is no other proof in this record of actual solicitation of the customers of appellant’s assignor, either before or after the restraining order. Under the circumstances, respondent may not now be punished for contempt. We agree with the opinion of the Special Term that this action should be tried. At the trial appellant will have the opportunity to introduce evidence of solicitation. Wenzel, Acting P. J., Beldoek, Murphy, Hallinan and Kleinfeld, JJ., concur.