APPEAL by the plaintiff, Daniel Boosing, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 25th day of July, 1911, upon the report of a referee dismissing the complaint upon the merits.
Frederick G. Bagley, for the appellant.
Francis F. Baker, for the respondents.
Judgment affirmed, with costs, upon the opinion of KENEFICK, Referee.
The following is the opinion of the referee:
DANIEL J. KENEFICK, Referee:
Upon the facts found in my decision there arises for determination the single question as to whether, in the absence of an express contract, a salesman who, while in the employ of his master, and through such employment, learns the names and addresses of his master's customers and the individual preferences, traits and characteristics of such customers and the dates on which they are accustomed to buy, and the kind and grade of goods which they are in the habit of purchasing, and the promptitude with which they pay their bills, and, generally, their financial credit and standing, and also gains an influence with them, is, on leaving the employ of the master,
forever thereafter prohibited from using such knowledge or exercising such influence for his own benefit, and from soliciting trade of like character for himself from his former master's said customers.
Of the one hundred and seven customers whom Dorman was serving for plaintiff at the time his employment terminated, it appears that about thirty-two were new customers whom Dorman had secured for plaintiff during the course of his employment, and it is fair to infer that the remaining seventy-five were customers of the plaintiff at the time Dorman entered his employ and that their names appeared on the route book which plaintiff turned over to Dorman when the latter began his employment. There is no substantial dispute as to the proposition that the entire one hundred and seven persons or firms were listed in the city directory as retail dealers in butter, eggs, etc.; that they conducted business places and publicly displayed the character of business in which they were engaged; that with the exception of two or three they were not exclusive customers of the plaintiff, but dealt more or less constantly with plaintiff's competitors in the butter and egg business; that eighteen of said persons or firms were located on Washington Market, a public market in the city of Buffalo, and that substantially one-half in volume of the sales made by the defendant Dorman for the plaintiff while in his employ was to these dealers on Washington Market.
The precise question under such a state of facts as here developed does not seem to have been passed upon. Secret processes of manufacture confided to an employee in the course of his employment have been protected from disclosure or use by the employee, either for the benefit of himself or another after his employment had terminated. Even in the absence of an express contract, this is a property right for which the master is entitled to protection. ( Little v. Gallus, 4 A.D. 569.)
I cannot see, however, that the information acquired by the defendant Dorman in serving the plaintiff's customers can be properly classified as a trade secret.
The plaintiff relies on two cases decided at Special Term in this district, namely: Witkop & ...