Delancey Kosher Restaurant & Caterers Corp., Respondent, v. Phil Gluckstern et al., Appellants, et al., Defendants

First Department, November, 1952. (November 5, 1952.) Delancey Kosher Restaurant & Caterers Corp., Respondent, v. Phil Gluckstern et al., Appellants, et al., Defendants. [MAJORITY — Per Curiam.] Appeal from a judgment of the Supreme Court in favor of plaintiff, entered May 22, 1952, in New York County, upon a decision of an Official Referee. Per Curiam. The learned Referee, in the light of all the facts and circumstances disclosed, correctly determined after trial that defendants’ location of their new restaurant under the name “the original Gluckstem’s” in close proximity to and directly opposite the site of plaintiff’s predecessor, was a clear violation of that clause of the 1940 contract that evinced an intention to preserve for plaintiff’s predecessor the good will of its trade name, Gluckstern’s Inc. at that particular site, 135 Delaneey Street. That clause forbidding Philip and Louis Gluckstern to engage in the restaurant business under the name, Gluckstern’s Inc., so as to represent that their business is part of or that they are interested in the business of Gluckstern’s Inc., was without limitation as to time, is applicable and in full force and effect. The 1940 agreement conferred no right upon defendant Philip Gluckstern to appropriate the good will created by plaintiff’s predecessor at the particular site in question and defendants’ acts considered together in their entirety were in that respect a violation of the contract as well as acts of unfair competition and were properly enjoined. We think, however, that the geographical prohibition in the judgment was too extensive and that the second decretal clause should be modified by substituting the words “ within three city blocks ” for the words “ within twelve city blocks ” and as so modified, the judgment appealed from should be affirmed, without costs. Settle order. Peek, P. J., Dore, Cohn and Callahan, JJ., concur. Judgment unanimously modified in accordance with the opinion herein and, as so modified, affirmed, without costs. Settle order on notice.