majority">Balcom, Justice.

It is immaterial whether the defendant is Working at the barbers’ trade in Owego, as the servant of Isaacs, or is there carrying on the business of a barber on his own account, and exclusively for his own benefit, for he covenanted not to exercise or follow his trade and employment of shaving, hair-dressing, or hair-cutting in Owego, for the term of one year from the 22d day of September, 1856. He is exercising and following such trade there, though he be the servant of Isaacs» He has, therefore, violated his covenant with the plaintiff.

It is very doubtful whether the plaintiff could collect a judgment of $100 of the defendant, if he had one for that sum against him : therefore the injunction should not be vacated by reason of the alleged ability of the defendant to pay damages for violating his covenant. But granting that he is insolvent, and therefore unable to pay any damages, is the plaintiff entitled to the extraordinary remedy by injunction which he seeks in this case, for the enforcement of the defendant’s agreement? The defendant covenanted not to exercise, carry on, or follow his craft, trade and employment of shaving, hair-dressing, or hair-cutting, in the village of Owego; or in any way to pursue the trade of a barber in said village, for one year, under the penalty of the payment to the plaintiff of one hundred dollars, according to the condition of a bond executed to the plaintiff by the defendant.

The covenant and bond are undoubtedly valid. (4 Wend. 468; 21 id. 157; 22 id. 201; 11 Barbour, 127.) 'They only restrain the defendant from the exercise of his trade in a single village, and that only for the period of one year; and the complaint shows that the plaintiff has supplied, and intends to continue to supply the public demand for a barber and barber’s shop in the particular village, which is all that is necessary to make the covenant binding, according to the case of Lawrence agt. Kidder. (10 Barb. 641.)

It is laid down by Story, “if a party covenants that he will not carry on his trade within a certain distance, or in a certain place, within which the other party carries on the same trade, *238& court of equity will restrain the party from breaking the agreement so made.” (2 Story’s Equ. Jur. § 722 a.)

Again: Story says, “ A covenant not to carry on the same trade with the covenantee in the same street or town, will be specifically decreed.” (2 Story’s Equ. J. § 729.) But he also states that “the ground of all these decisions is the utter uncertainty of any calculation of damages, as they must in such cases be, in a great measure, conjectural; or that some further act is necessary to be done, to clothe the defendant with a full and effective title to support his claim.” (2 Story’s Equ. J. § 722 a.)

' In this case, if the defendant should pay to the plaintiff the one hundred dollars mentioned in the agreement he made with the plaintiff, he could open a barber’s shop and exercise his trade in Owego, and the plaintiff" would have no claim on him for further damages, although he might sustain a much larger amount, by reason of the defendant violating his covenant. This must be so, because the defendant only bound himself “ under the penalty of the payment” of one hundred dollars to the plaintiff, not to violate his agreement. And the plaintiff can recover this hundred dollars of the defendant for his violation of his covenant, as liquidated damages, by reason of the utter uncertainty of any calculation of the plaintiff’s damages, for such breach of the covenant. (4 Wend. 468; 22 id. 201; Mott agt. Mott, 11 Barb. 127; Nobles agt. Bates, 7 Cow. 307.)

The plaintiff having a perfect legal remedy to'recover all the damages that the defendant agreed to pay him for violating his covenant, and the amount thereof being fixed and certain, the plaintiff would not be entitled to an injunction to compel the defendant to specifically perform his agreement, if it were conceded that he is insolvent. First, because the defendant may choose to pay the $100 damages, for the privilege of exercising the trade of a barber during the year in Owego. Secondly, because the agreement between the parties virtually restricts the plaintiff’s remedy against the defendant to the recovery of the $100, “nominated in the bond,” for the defendant’s non-performance ; and he may be damnified much beyond that sum by being restrained from exercising his trade for one year in Owe-*239go. Thirdly, for the reason that this is not a case where the insolvency of the defendant is a sufficient ground for equitable relief by injunction. Such relief might embarrass the defendant in exercising his right to pay to the plaintiff the damages liquidated by their agreement, and thus violate the intention of the parties as it is therein manifested. The plaintiff is already entitled to recover the $100 damages of the defendant, and that is the extent of his remedy against him either at law or in equity.

If the agreement in this case had been simply that the defendant, for the consideration of $250, covenanted with the plaintiff not to exercise the trade of a barber in Owego for the period of one year, without any sum or forfeiture being stated in it, which the defendant should pay in case of his non-performance, then the rule laid down in Story would apply, (2 Story’s Equ. J. § 722 a,) and the plaintiff would be entitled to an injunction restraining the defendant, by reason of the impossibility of accurately calculating the plaintiff’s damages; and this would be so whether the defendant be insolvent or not.

It becomes unnecessary to decide whether the injunction is temporary in form, or whether the complaint should contain a prayer for a temporary injunction to entitle the plaintiff to one, upon the facts existing at the time of the commencement of the action. Under the old equity practice such a prayer was necessary. (Walker agt. Devereaux, 4 Paige, 229; 1 Barb. Ch. Pr. 37 & 608.) But whether such a prayer is necessary since the enactment of the Code, is not so clear. (Code, §§ 140,141, 218, 219, 220.)

The injunction order granted by the county judge must be vacated, with $10 costs of the motion. Thomas Farrington, Esq., of Owego, is appointed a referee to ascertain, and report to the court, the damages that the defendant has sustained by reason of the injunction. (Code, § 222.) And the plaintiff may have twenty days, after the referee shall file his report, in which to pay such damages and amend the summons and complaint in the action, so he can recover the $100 damages specified in the agreement and bond, mentioned in the complaint. (See 1 Barb. Ch. Pr. 324.)

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