For the foregoing reason it is unnecessary to discuss here the other points raised by the appellant in his brief. Judgment must be reversed, and a new trial ordered, with $30 costs to the appellant to abide the event. All concur. NEW YORK WET WASH LAUNDRY CO. v. UNGER. (Supreme Court, Appellate Division, First Department. December 30, 1915.) INJUNCTION 136-BREACH OF CONTRACT BY SERVANT-TEMPORARY RE STRAINT. Where defendant, employed by a laundry company to procure customers, under an agreement not to engage in the company's business in the borough for a year in any other service, left his employer and solicited customers for a rival concern, succeeding in taking away some of his old employer's customers, in the first employer's suit to restrain him from engaging in the laundry business according to his contract, defendant will be enjoined, during pendency of the suit, from soliciting or collecting laundry from any person who was a customer of his first employer while he was its servant. [Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 305, 306; Dec. Dig. 136.] Appeal from Special Term, New York County. Suit by the New York Wet Wash Laundry Company against Morris Unger. From an order denying plaintiff's motion to continue injunction, it appeals. Order reversed. Argued before INGRAHAM, P. J., and LAUGHLIN, CLARKE, DOWLING, and SMITH, JJ. Louis Boehm, of New York City, for appellant. PER CURIAM. Defendant was formerly employed to procure customers for the plaintiff, for which he was paid compensation. The evidence fairly establishes that employment was for six months, with an agreement not to engage in plaintiff's business in the borough of Manhattan for a year in any other service. Without apparent cause defendant left plaintiff's service, and is now engaged in collecting wash and soliciting customers for a rival concern, and has succeeded in taking from the plaintiff a number of its customers to its rival. The action is brought to restrain the defendant from soliciting the plaintiff's customers for its rival, and to restrain him from engaging in the wet wash business for the period of a year, according to his contract. The order appealed from denied a temporary injunction. That order should be reversed, and the defendant should be enjoined during the pendency of the action from soliciting or collecting wash from any person who was a customer of the plaintiff while defendant was in its employ. Mutual Milk & Cream Co. v. Priggs, 112 App. Div. 652, 98 N. Y. Supp. 458; Mutual Milk & Cream Co. v. Heldt, 120 App. Div. 795, 105 N. Y. Supp. 661; Reynolds Co. v. Dreyer, 12 Misc. Rep. 368, 33 N. Y. Supp. 649; Hackett v. Reynolds Co., 30 For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Misc. Rep. 733, 62 N. Y. Supp. 1076; Davies v. Racer, 72 Hun, 43, 25 N. Y. Supp. 293; Magnolia Metal Co. v. Price, 65 App. Div. 276, 72 N. Y. Supp. 792. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs. Settle order on notice. (93 Misc. Rep. 47) OPPENHEIM v. LEVINE. (Supreme Court, Appellate Term, First Department. December 30, 1915.) 1. COURTS 188-MUNICIPAL COURTS-JURISDICTION-INTERPLEADER. Under Municipal Court Act (Laws 1902, c. 580) § 187, authorizing the Municipal Court of the City of New York to grant an order of interpleader, in actions upon contract, or in actions to recover a chattel, the court had no jurisdiction to enter an order of interpleader in an action for conversion. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 412, 439, 440, 442, 447, 448, 451, 452, 454, 458, 464, 465, 467, 468; Dec. Dig. 188.] 2. COURTS 190-MUNICIPAL COURT-ORDERS APPEALABLE. An order of interpleader, not being one of those specified in Municipal Court Act, §§ 257, 310, defining appealable orders, was not appealable by separate appeal, and the plaintiff's only remedy was to comply therewith, go to trial, appeal from the judgment, and bring up the order for review upon such appeal. [Ed. Note. For other cases, see Courts, Dec. Dig. 190.] Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Isidore Oppenheim against Samuel Levine. From a judgment in favor of the defendant, after trial by the court, bringing up for review an order allowing the original defendant, Benjamin Matusow, to deposit the money in controversy in court and to interplead Samuel Levine as defendant in his stead, plaintiff appeals. Order of interpleader reversed, motion for interpleader denied, and subsequent proceedings, including the judgment, vacated; the action to proceed against the defendant Matusow. Argued December term, 1915, before GUY, PAGE, and PHIL BIN, JJ. Sykes, McCole & Potter, of New York City, for appellant. PAGE, J. The plaintiff brought this action against one Benjamin. Matusow to recover damages for the conversion of a check for $150 made by Samuel Levine, payable to the order of the plaintiff and delivered to the plaintiff by Levine. The plaintiff alleged in the complaint that he indorsed the check and delivered it to the defendant Matusow for the purpose of having Matusow take it to the bank, have it certified, and return it to the plaintiff, which Matusow agreed to do, but, instead of returning the check to the plaintiff, Matusow received payment of the proceeds thereof, and converted it to his own For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes use, and refused to deliver the check or the proceeds thereof to the plaintiff upon demand. On the 28th day of April, 1915, on motion of the defendant Matusow, which was opposed by the plaintiff, an order of interpleader was entered, substituting Samuel Levine as defendant in the place of Matusow, and discharging Matusow from liability on his payment into court of the amount claimed in the summons, less $10 costs of the motion. The summons and amended complaint were directed to be served upon Levine. The money was paid into court by Matusow, and Levine appeared in the action and filed an answer setting forth as a defense that the check of $150 was given to the plaintiff as part payment upon the sale of a tobacco business to Levine for $3,800, the balance to be paid within five days thereafter, if certain representations made by the plaintiff as to the weekly income of the store were found to be true, and that the said representations were false, to the knowledge of the plaintiff, and the plaintiff failed to carry out the terms of the contract of sale, whereby the defendant has been injured in the sum of $150, paid by him to the plaintiff. The action came on for trial upon the issues so raised between the plaintiff and the new defendant, Levine, and judgment was granted in favor of the said defendant. The plaintiff has appealed therefrom, bringing up for review the so-called order of interpleader. [1] The jurisdiction of the Municipal Court at the time the order was granted was governed by the Municipal Court Act (Laws of 1902, c. 580), and the authority of the said court to grant an order of interpleader, was restricted by section 187 of the said act to actions "upon contract or in an action to recover a chattel." The present action is one for conversion, and the court had no jurisdiction to enter an order of interpleader. Midler v. Lese, 45 Misc. Rep. 637, 91 N. Y. Supp. 148. [2] The order, however, not being one of those specified in section 257 or 310 of the Municipal Court Act, supra, was not appealable by separate appeal, and the plaintiff's only remedy was to comply with the order, go to trial, and appeal from the judgment, bringing up the order for review upon the appeal from the judgment. Bank of Long Island v. Gregory, 132 App. Div. 93, 116 N. Y. Supp. 308. This the plaintiff has done. As the order of interpleader was without jurisdiction, it must be reversed, the motion for interpleader denied, with $10 costs, and the subsequent proceedings, including the judgment, vacated, and the action to proceed against the defendant Matusow, with $30 costs to the appellant to abide the event. All concur. PISER v. HECHT et al. (Supreme Court, Appellate Division, First Department. December 30, 1915.) LANDLORD AND TENANT 184-SECURITY FOR RENT-ASSIGNMENT OF LEASE -EFFECT. A tenant, on leasing premises, agreed to pay a stipulated rental, and gave a bond and mortgage as collateral to secure performance of the lease on her part. Thereafter, with consent of the landlord, she assigned the lease to a corporation, which agreed to assume and perform all the conditions and covenants of the lease, and the corporation assigned the lease to another corporation. The landlord accepted the rent from the corporations directly. The tenant, in her complaint asking cancellation of the bond and mortgage, failed to allege that either corporation agreed to give a bond and mortgage to replace hers, or that the landlord in consenting to the assignment agreed to release her. Held, that she was not entitled to the cancellation, since the landlord could not be deprived of his security without his consent, nor would his consent be implied from consent to the assignment; the substitution of one tenant for another not operating to release the first from his obligation to pay rent. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 743-750; Dec. Dig. 184.] Appeal from Special Term, New York County. Action by Susie E. Piser against Ferdinand Hecht and another. From a judgment on the pleadings for plaintiff, entered in default of answer allowed under order overruling defendant's demurrers, defendants appeal. Reversed, demurrers sustained, and motion for judgment denied. Argued before INGRAHAM, P. J., and MCLAUGHLIN, LAUGHLIN, SCOTT, and DOWLING, JJ. Norman P. S. Schloss, of New York City, for appellants. MCLAUGHLIN, J. The complaint in this action alleges in substance that on the 14th day of September, 1908, Abraham Piser, husband of the plaintiff, leased from the defendant Hecht certain real estate in the city of New York for a term of seven years, commencing on the 1st of May, 1910, with an option under certain conditions for an additional three years; that the lease was in writing and by its terms it was agreed that Piser should execute and deliver to Hecht a bond secured by mortgage in the sum of $10,000 as collateral security for the full performance of the lease by the lessee; that on March 4, 1909, Piser died, leaving his estate, both real and personal, to the plaintiff; that on February 26, 1910, she took the place of her husband in the lease and gave the bond and mortgage required; that prior to the 26th of June, 1911, the lease was transferred and assigned by the plaintiff to Piser & Co., a domestic corporation, and that the company agreed to assume and perform all the conditions and covenants of the lessee specified in the lease; that on the 26th of June, 1911, Piser & Co. transferred the lease to the defendant the Piser Furniture Company, a domestic corporation, and it has ever since been and is now the owner of the lease and in possession of the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes demised premises; that Hecht had knowledge of the assignment to the Piser Furniture Company, which has since paid the rent directly to him, and has become and is his tenant, and is recognized as such; that prior to the commencement of the action plaintiff demanded that Hecht cancel and surrender the bond and mortgage given by her, which he has refused to do; that she has also demanded that the Piser Furniture Company give another bond in place of the one which she gave, which the furniture company has refused to do; and that by the terms of the assignment to the furniture company it agreed to assume all the liabilities and obligations of Piser & Co. and to indemnify it against any loss or expense in connection with the same. The judgment demanded is that the bond and mortgage given by the plaintiff be canceled and discharged, and, if security for the performance of the lease on the part of the lessee be required by Hecht, that the defendant Piser Furniture Company be directed to furnish it, or indemnify plaintiff therefor. Each defendant separately demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. Upon the complaint and demurrers the plaintiff moved, under section 547 of the Code of Civil Procedure, for judgment on the pleadings. The court overruled the demurrers, with leave to defendants to withdraw same and answer on payment of $10 costs, in default of which final judgment was ordered for the relief asked in the complaint. The defendants appealed from the order. I am of the opinion the order should be reversed, and the demurrers sustained. When Hecht entered into the lease with the plaintiff's husband, he required him to give a bond for $10,000, secured by mortgage conditioned as collateral security for the performance by the lessee of the terms and covenants on his part to be performed. Before the bond and mortgage were given, plaintiff's husband died, and she thereupon, with the consent of Hecht, took his place in the lease and gave a bond and mortgage as previously agreed by him. There are no allegations in the complaint to the effect that when the assignments were made by the plaintiff to Piser & Co., and by it to the Piser Furniture Company, either corporation agreed to give Hecht a bond and mortgage as collateral security for the performance of the covenants on the part of the lessee to be performed, or that Hecht agreed to release the plaintiff from her obligation to perform the terms of the lease or to surrender the bond and mortgage which she had given. The term of the lease was for seven years, with an option to renew for an additional three years. The rent stipulated to be paid was $15,000 a year, or $105,000 for the seven years, to say nothing of the option to renew, and before Hecht would enter into the lease he required that the bond and mortgage be given. The complaint contains no allegation to the effect that Hecht has ever agreed to give up the security, or that he has done anything which entitles the plaintiff to have the same canceled and returned to her. Obviously, one who has taken collateral security for the payment of rent by a lessee cannot be deprived of it without his consent, and Hecht's consent cannot be implied from the fact hat he has accepted rent from the Piser Company or the Piser Furniture Company; in other |