Leventhal v. Palmer

The plaintiff’s motion for an order temporarily restraining some of the defendants during the pendency of this action from the installation, maintenance and servicing of coin-operated cigarette vending machines on the premises of some of the other defendants, in violation of a May 20, 1958 restrictive covenant, is denied. However, subject to the consent and direction of the Justice then presiding in Special Term, Part II, this case shall be placed at the head of the May 2, 1960, Beady Trial Calendar.

The plaintiff’s allegations of a conspiracy and of concerted action to interfere with the business purchased by the plaintiff from the defendant, Cigarette Service, Inc., are mere conclusions or beliefs, and are not statements of fact.

Furthermore, there is no affirmative statement to show that the defendants, Cigarette Service, Inc., and its former president, Aaron H. Gosch, are engaged in operations violative of covenant. In fact these defendants strongly deny any activity in the restricted area, and affirmatively show that their sole activities are in another locality.

As for the defendant, David Gabel, there is nothing in any of the contracts or the restrictive covenant which warrants his being named as a defendant.

The defendant, Tony Palmer, is not shown to have been an officer of the defendant, Cigarette Service, Inc. The moving affidavit states that “ the defendant, Tony Palmer, on October 15, 1958, who was an officer or employee of Cigarette Service, Inc.” This is months after the signing of the restrictive covenant. Furthermore, the defendant, Tony Palmer, denies ever signing the alleged restrictive covenant dated October 15, 1958, or being an officer of Cigarette Service, Inc.

A temporary injunction is a drastic remedy to be utilized only on a clear showing of irreparable injury to the applicant by the defendants or of violation of his legal rights by them without it. This has not been shown by the moving documents. The motion is denied.

Submit order with proper provisions for placing the case on the Trial Calendar.