The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This case comes before this court on two motions.
1. Motion made on behalf of the plaintiff to strike out the first defense set forth in the answer on the ground that it is insufficient. The defense in question alleges: "1. That the complaint fails to state a claim against the defendant upon which relief can be granted."
2. A counter-motion made on behalf of the defendant for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, dismissing the action because the complaint fails to state a claim upon which relief can be granted.
As the sole question presented by both motions is, does the complaint state facts sufficient to constitute a cause of action, I will consider them together.
The material allegations of the complaint are as follows:
The plaintiff resides in Florida, the defendant in Brooklyn, New York.
On February 1st, 1919, and for many years prior thereto, plaintiff was a doctor of dental surgery, specializing in oral surgery and radiography, in Brooklyn. He had acquired great ability, enjoyed a wide reputation, and had a large practice.
On that date he entered into a contract with the defendant, who was a duly licensed dentist, excerpts from which are quoted in the complaint.
The complete instrument reads as follows:
"Agreement made and entered into this day of February, 1919 by and between Frederick K. Ream, hereinafter called the party of the first part, and Vincent D. Callahan, hereinafter called the party of the second part.
"I The party of the second part, in consideration of the sum of one dollar, the receipt of which is hereby acknowledged, and of the contracts hereinafter contained for his services and the compensation to be paid therefor by the party of the first part, said compensation being more than it otherwise would be on account of clauses 3, 4 and 5a of this agreement, does hereby agree with and promise to work for said party of the first part, as a specialist in Oral Surgery and Radiography, in the Borough of Brooklyn, City of New York, State of New York for five years from and after February 1st, 1919.
"Ia It is also understood and agreed that the party of the second part shall be willing to work in party of the first part's other offices in the event of absence occasioned by illness or vacations of my assistants.
"II The party of the second part further covenants and agrees with party of the first part that he will, to the best of his ability and skill do everything in his power to promote the interests of the party of the first part during all the time he may be in his employ; that he will conform to the regular rules and hours of the office of the party of the first part (said hours to be from 9:00 A.M. to 5 P.M. on week days only), and will exercise care, kindness and courtesy in the treatment of patients.
"III The party of the second part further covenants and agrees with party of the first part that said party of the second part will not either directly or indirectly carry on, or be employed or concerned in the practice of Oral Surgery or Radiography in the Borough of Brooklyn, City of New York, State of New York, for the space of three years from the day said party of the second part ceases to be employed by said party of the first part; said three years to date from the last day said party of the second part actually works for said party of the first part, whether the term of service be more or less than that set forth in this agreement.
"IV The party of the second part further agrees that whenever he leaves the service of the party of the first part he will not send notices to any patients whom he has met in the office of the party of the first part, or in any way whatsoever attempt to divert business from said party of the first part.
"V The party of the first part in consideration of the services to be performed by the party of the second part as aforesaid, and of the covenants and agreements therein contained on the part of the party of the second part, agrees to pay the said party of the second part the sum of $1,040 for the first half year, or $40 per week, and $1,300 for the second half or $50 per week, of the term of service mentioned in clause I of this agreement -- $3,100 for the second year or at the rate of $59.61 per week; $3,600 for the third year or at the rate of $69.23; $4,100 for the fourth year or at the rate of $78.84 per week; $4,600 for the fifth year or at the rate of $88.46 per week.
"Va It is hereby agreed that at the expiration of five years the party of the second part will accept a one-third interest of the net income in party of the first part's practice in Brooklyn instead of a stipulated salary, said compensation or one-third interest to be at least $5,000 per year.
At expiration of eight years: one half interest in dental practice and ...