SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
- decided: January 27, 1969.
INSTRUMENT SYSTEMS CORPORATION, PLAINTIFF,
V. LA ROSA & SONS, INC., DEFENDANT. (ACTION NO. 1.) V. LA ROSA & SONS, INC., RESPONDENT, V. INSTRUMENT SYSTEMS CORPORATION, APPELLANT. (ACTION NO. 2.)
Appeal from so much of an order of the Supreme Court, Suffolk County, entered July 30, 1968, as, on respondent's cross motion, preliminarily enjoined appellant from selling plastic trays manufactured by it. Order reversed insofar as appealed from, on the law and the facts, with $10 costs and disbursements; the second, third, fourth and sixth decretal paragraphs of the order are accordingly struck out; and respondent's cross motion is disposed of by directing that, should plaintiff V. La Rosa & Sons, Inc., establish after trial that defendant Instrument Systems Corporation breached the agreement dated May 10, 1966, as amended by letter dated April 8, 1967, then the sale by said plaintiff of 200 million plastic trays per year is not a condition to said plaintiff's option rights to purchase the corporate stock as set forth in the agreement. In our opinion, a preliminary injunction should not have been granted, since there is a sharp issue of fact as to whether plaintiff V. La Rosa & Sons, Inc., as the exclusive sales agent, used reasonable efforts to sell Instrument Systems' product. Nor should such injunction have been granted in the face of the fact that said plaintiff has an adequate remedy at law (Cupples Envelope Co. v. Lackner, 99 App. Div. 231) and has failed to show irreparable injury (Gilbert v. Burnside, 6 A.D.2d 834). Beldock, P.J., Rabin and Benjamin, JJ., concur; Christ and Martuscello, JJ., dissent and vote to affirm the order insofar as appealed from.
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