Opinion
November 19, 1951.
In an action for an injunction, defendant appeals from an order restraining him during the pendency of the action from engaging in or being employed as a salesman by any person, firm or corporation engaged in the coal and fuel oil business in a designated territory, or divulging any information obtained by defendant from plaintiffs by virtue of his employment by them. Order modified on the law and the facts by striking out the first ordering paragraph and substituting therefor a provision that defendant be enjoined, during the pendency of the action, from, directly or indirectly, soliciting or receiving orders for coal and fuel oil for himself or others from any customers of plaintiffs, who were such customers or who were solicited by defendant while in the plaintiffs' employ, and enjoining defendant from divulging any information as to such customers received by defendant from plaintiffs by virtue of his employment. As so modified, the order is affirmed, without costs. The scope of the temporary injunction appealed from is not justified by the alleged facts. ( Clark Paper Mfg. Co. v. Stenacher, 236 N.Y. 312; Murray v. Cooper, 268 App. Div. 411. ) Aside from his knowledge of plaintiffs' customers and their credit status, the record discloses no special or specific factor which would move equity to prohibit defendant from soliciting orders from persons not customers of plaintiffs. Whether plaintiffs have suffered damage and whether equity should enforce the negative covenant in its entirety, or to what extent, cannot be determined until all the circumstances surrounding the employment are established. The grant or refusal of a temporary injunction does not determine the issues. ( Walker Memorial Baptist Church v. Saunders, 285 N.Y. 462.) Nolan, P.J., Johnston, Adel, Sneed and MacCrate, JJ., concur.