Black v. Marcus Loew Booking Agency , 265 A.D. 930 ( 1942 )

Per Curiam.

This is an action to recover damages for unlawfully interfering with and inducing a breach of contract.

Although two causes of action are pleaded in the complaint, the second was properly dismissed as it did not plead any different cause of action than that first alleged, being no more than a claim for additional damages.

Plaintiff claimed to have an exclusive contract with one Barricini Inc., to place all advertising used by said corporation. Defendants are (1) an owner and operator of a radio station, and (2) a salesman employed by said station to solicit accounts.

Special Term in dismissing the complaint stated that, while it recognized the rule that intentionally and knowingly inducing a breach of a contract constituted an actionable wrong, if done without justification or excuse, what was complained of here amounted to no more than an act of a competitor in getting business by solicitation, and offering better terms therefor, it did not amount to an unlawful interference with contractual rights.

This determination disregarded plaintiff’s allegation that he had an exclusive contract to place all of Barricini Inc.’s advertising, and that defendants knew of this agreement. The situation, therefore, was not one of free competition. Construing the allegations of the complaint liberally, we find they sufficiently alleged that the defendants induced Barricini Inc. to break its contracts without reasonable justification. (Hornstein v. Podwitz 254 N. Y. 443.)

The order, insofar as it grants the cross motion of the defendants-respondeqts for judgment on the pleadings, should be modified by denying the motion as to the first cause of action. The order insofar as it denies plaintiff’s motion for an examination before trial should be modified by granting plaintiff’s motion for an examination before trial concerning items 1 to 9 inclusive and item 12 contained* in his notice of motion for examination before trial, but denied as to the other items and as to discovery and inspection. As so modified the order appealed from should be affirmed with twenty dollars costs and disbursements to the appellant.

Present — Martin, P. J., Townley, Untermyer, Cohn and Callahan, JJ.; Cohn, J., dissents and votes to affirm.

Order, insofar as it grants the cross motion of the defendants-respondents for judgment on the pleadings dismissing the complaint modified by denying the motion as to the first cause of action. Order, insofar as it denies plaintiff’s motion for an examination before trial, modified by granting plaintiff’s motion for an examination before trial concerning items 1 to 9 inclusive and item 12 contained in his notice of motion for examination before trial, but denied as to the other items and as to discovery and inspection. As so modified the order appealed from is affirmed with twenty dollars costs and disbursements to the appellant. The date for the examination to proceed to be fixed in the order.