Photochart v. Riccio

WILSON, J. By an agreement in writing dated June 25, 1941, appellant, as licensor, granted to respondents an exclusive license to use a patented device known as “photo-chart” or “photochart camera” for photographing the results or finishes of horse races and other forms of racing for a period of 17 years, upon the payment of royalties in the amounts stated in the agreement. Appellant agreed that he would not compete with respondents for a period of five years after the date of the agreement.

In their complaint, which was filed on October 11, 1945, respondents alleged that appellant was doing and threatening to do various acts which, in violation of the agreement, would be in competition with respondents’ activities in the use of the device at race tracks throughout the world.

Upon respondents’ application, and after a hearing at which affidavits were presented by both parties, the court issued a preliminary injunction on November 16, 1945, restraining ap[907]pellant “pending the final determination of this action” from doing any of the acts complained of by respondents, from which order defendant has appealed. No brief has been filed nor appearance made upon this appeal by respondents.

Since, by the terms of the agreement, appellant was not prohibited from competing with respondents after June 25, 1946, the order enjoining the acts detailed in the complaint for the indefinite period until “the final determination” of the action was beyond the power of the court. The term during which respondents were entitled to be safeguarded against competition having expired they are no longer entitled to the protection of the order.

The order granting the preliminary injunction is reversed.

Moore, P. J., and McComb, J., concurred.