Francisco v. Smith

• Decision Date: 27 November 1894
• Citation: 143 N.Y. 488,38 N.E. 980
• Parties: FRANCISCO v. SMITH.
• Court: New York Court of Appeals Court of Appeals

143 N.Y. 488

38 N.E. 980

FRANCISCO

v.SMITH.

Court of Appeals of New York.

Nov. 27, 1894.

Appeal from supreme court, general term, Fourth department.

Action by Harriet A. Francisco against Charles A. Smith to restrain the carrying on by defendant of a certain business. From a judgment of the general term (22 N. Y. Supp. 722) reversing a judgment for defendant, defendant appeals. Affirmed.

Prior to the 20th day of February, 1888, the defendant carried on the business of baker and confectioner in Little Falls, and on that day he sold to Frank E. Francisco his business and the good will thereof, together with the property contained in his place of business, and agreed with him that he would not, for the period of five years from the 1st day of March then following, engage or become interested in the business of a baker or confectioner in that village. Mr. Francisco went into possession of the business on the 1st day of March, and carried it on at the same place until the 10th day of November, 1889. On the 27th day of February, 1889, he gave to Clark & Wood, of Ft. Plain, a chattel mortgage on certain property connected with the business to secure money then loaned, and a prior indebtedness, and on the 9th day of November, 1889, he gave them a bill of sale of the property mentioned in the mortgage, and all the other property connected with his business, and on the next day they, by virtue of the mortgage and the bill of sale, took possession of the property and store, and closed the store, and took part of the property to Ft. Plain, and remained in possession of the property and kept the store closed until November 15, 1889, doing no business whatever there. On the latter date the plaintiff, by her husband, Frank E. Francisco, as her agent, purchased from Clark & Wood all their interest in the mortgage and the property covered thereby, and all the property covered by the bill of sale, except some groceries and outside property, and paid them therefor. Immediately after such purchase she took possession of the store and bake shop, and the tools, fixtures, and appliances therein contained, and the property therewith connected, while her husband carried on the business, except as above mentioned, and at once reopened the store and bake shop, and carried on therein the bakery and confectionery business, and commenced selling the same kind of goods, and to substantially the same customers, as her husband had been selling, using the same tools and fixtures. On the same day, and immediately prior to such purchase by her, it was verbally agreed between her and her husband that she would furnish the money to make the purchase, and that he should take charge of the business and carry it on in her name, and that his family, consisting of the plaintiff, a son, and himself, should be supported out of the business. He was a practical baker, and she was not. He continued to manage the business, and his family was supported from the proceeds thereof. On the 25th day of May, 1891, he, by an instrument in writing indorsed upon the contract of February 20, 1888, between him and the defendant, in form transferred to her, without any actual consideration paid, all his interest in the contract, and all claims and demands therein, and all covenants therein contained, and all breaches thereof, and the business formerly carried on by him, and the good will thereof. About December 15, 1890, the defendant, without the consent of the plaintiff or her husband, commenced carrying on a bakery and confectionery business at Little Falls like that which he had sold to the plaintiff's husband, and continued to carry on the same to the...