I dissent. The action is brought specifically to enforce an agreement made between the plaintiff and the defendant Siegel-Oooper Company The demand for relief is that it be adjudged and decreed that the defendant Siegel-Oooper Company carry out its said agreement with plaintiff and specifically perform the same, upon the plaintiff complying with all the conditions of said agreement on its part to be performed; that it be adjudged and decreed that the defendant, the Siegel-Oooper Company, its agents and servants, be enjoined and restrained from selling or allowing to be sold on its premises from December 13, 1897, to December 12, 1899, and for three months thereafter, any paper patterns except those made by plaintiff; and that the defendant, the Butterick Publishing .Company, be enjoined and restrained from December 12,1897, to December 12, 1899, and for three months thereafter, from selling its paper *574patterns on the premises of the defendant, the Siegel-Cooper Company, and from selling its paper patterns to said Siegel-Cooper Company during said period.
The contract sought to be enforced is an executory contract to last for two years, -and from year to year, until terminated by a three months’ notice in writing. It imposes upon the contracting parties various duties and obligations to each other to continue during the period for which the contract shall continue. The plaintiff is to conduct at its own risk and expense the pattern department, to furnish its own employees, such employees to be subject to the employees’ rules of the Siegel-Cooper Company. The plaintiff is also to furnish, free of charge, not less than 250,000 eight-page fashion sheets, and to print the advertisements of the Siegel-Cooper Company on front and back thereof, without charge, to be changed monthly if so desired. These obligations of the plaintiff are to be continuous, involving from day to day the services of the plaintiff’s employees and the furnishing by the company of these paper patterns. Then the Siegel-Cooper Company is to furnish for the use of the plaintiff the use of the present pattern fixtures and the present position for paper patterns, but with a provision that if a change of location should be desirable the new location is not to be a less prominent one than the present one. The Siegel-Cooper Company is to furnish wrapping paper and twine, free delivery and other store facilities, and is not to sell or allow to be sold on its premises patterns of any other make. The Siegel-Cooper Company is to make frequent mention of the fact that they are agents for the sale of the Standard patterns, in its daily New York newspaper advertisements, and to allow reasonable display of attractive show cards and signs .furnished by the Standard Fashion Company, and subject to the approval of the Siegel-Cooper Company at convenient places in its store. All of the provisions relate to the carrying on of a business in the defendant’s store by the plaintiff, regulate the conduct of such business, leaving much to the discretion of both parties, and to be determined by the changing conditions of the business from day to day. Can such a contract be specifically enforced by a court of equity % It seems to. me clear that it cannot.
The question was exhaustively examined in the case of Fargo v. N. Y. & N. E. R. R. Co. (3 Misc. Rep. 205). While the contract *575under consideration was somewhat different, substantially the same question was presented as is here under consideration. There Mr. Justice Babbett says, after analyzing the contract: “ Suffice it to say that the contract is exceedingly comprehensive and that its working details are most minute. These details almost invariably provide for special and varying contingencies, and the elements of discretion and judgment with regard to such contingencies abound. It is apparent that the due execution of such a contract must involve the ascertainment of what it is right and proper that the parties should do from day to day with regard to ever-varying circumstances. A decree for specific performance, couched in the precise terms of the contract itself, would be but the beginning of the judicial work.” And, as was said by Mr. Justice Steong, in Marble Company v. Ripley (10 Wall. 358), “'Another serious objection to a decree fora specific performance is found in the peculiar character of the contract itself, and in the duties which it requires of the owners of the quarries. These duties are continuous. They involve skill, personal labor and cultivated judgment. It is, in effect, a ¡personal contract to deliver marble of certain kinds, and in blocks of a kind, that the court is incapable of determining whether they accord with the contract or not. The agreement being for a perpetual supply of marble, no decree the court can make will end the controversy.”
The rule covering specific performance of contracts of this character is stated in the American and English Encyclopaedia of Law (Vol. 22, 1002), as follows: “The specific performance of a contract of personal service will not be enforced, for there is no practicable means of executing the decree. Contracts to be performed in the remote future, or the execution of which involves the performance of a continuous and protracted series of acts, or the doing of some act or thing which demands the exercise of the individual skill, discretion, taste, or talent of the promisor, are, of necessity, incapable of judicial supervision or control. For the breach of such agreements the party injured must be left to his remedy in a court of law.” And the cases cited in the note to this statement of the rule show that it has been almost universally applied in the courts of this country and in England.
While this is conceded to be the general rule, it is claimed that certain exceptions have been recognized, and that where the con*576tract contains a negative covenant, although the affirmative covenant could not be enforced, a court will enforce the negative covenant by injunction; but the cases in which such a negative covenant lias been enforced involved a performance of a defined class of contracts, where the services to be rendered or the contract to be performed required the performance of certain specific acts which could be performed only by the defendants, and were based upon the decision of the case of Lumley v. Wagner (1 De G., M. & G. *604). In that case a singer had agreed to sing at the plaintiff’s theatre for three months, and not to sing at any other, and the court enjoined her from performing at a rival establishment, though it was clear, and was admitted, that the court could not oblige her to sing for the plaintiff. It will be noticed that the exceptions to the general rule have been in cases where the obligation to be performed on the part of the plaintiff was one that could be specifically performed by the court, or where the defendant would have had a right of action in damages for a failure to perform, which would have been adequate and easily ascertained, and would have afforded the defendant all the relief against the plaintiff to which he was in any way entitled. In Lumley v. Wagner (supra) the defendant had agreed to pay the plaintiff a sum of money for services that were to be rendered. The defendant had broken her contract in refusing to perform the services, and was about to perform at another theatre in violation of her covenant contained in her contract of service. The case recognized, and those cases that have followed it have recognized, that the extraordinary character of the services to be rendered, and the fact that no one but the defendant could perform the service which was to be rendered, justified the court in making it an exception to the general rule and enforcing a negative covenant which was an essential part of the contract and which was an important element in inducing the plaintiff to execute the contract.
We are also referred to several cases of the Federal courts in which contracts made by common carriers or corporations performing some public service have been specifically enforced. But these cases appear to be based upon the peculiar nature of the service that was to be rendered relating to a business in which the public had an interest, such as common carriers or telegraph companies; or else cases in which the contract had been performed on the part of the *577plaintiff, and it was after the defendant had received the consideration upon which he had covenanted not to do a particular thing, and where the damages that would flow from a breach of his contract were incapable of definite ascertainment. The extent to which courts have carried this exception to the general rule has greatly varied, and it is impossible to reconcile the cases, and hardly possible to state any general rule from them. There are, howev'er, certain principles that have been established, and I think that they should be followed, except as to a case which is brought plainly within some of the exceptions to the rule which have been recognized. It is a general principle, applied in all actions for specific performance, that where the obligation to be performed by the plaintiff cannot be enforced, the court will not attempt to enforce any part of the contract; and while some of the cases have apparently violated this principle, the great mass of the authorities recognize and enforce it.
The allegation of the complaint and the one fact urged by the plaintiff as the basis of its right to maintain this action is, that there could be no adequate remedy at law because it would be impossible to ascertain the damage that would flow to either party from a breach of the contract by the other party. We have seen that, from the nature of the contract, it would be impossible for the court to specifically perform it. If the plaintiff neglected and refused to perform the contract on its part, failed to provide the necessary material for carrying on the business, and the employees to carry it on, admitting the allegations of the complaint to be true, the defendant could have no remedy at law for a breach of the contract, as no damage could be proved to have resulted from such a breach. It could have no remedy by specific performance, as the contract is of such a nature that specific performance cannot be decreed. And thus, if this injunction were granted to the plaintiff, enforcing the negative covenant in the contract and restraining the defendant from selling any other make of paper patterns, it would he entirely at the mercy of the plaintiff. The contract could not be enforced nor any relief given to the defendant if the plaintiff refused to perform its contract, while the injunction would restrain the defendant from carrying on its business by the sale of the other goods. There *578is thus the want of mutuality. “And it is a general principle that when, from personal incapacity, the nature of the contract, or any other cause, a contract is incapable of being enforced against one party, that party is equally incapable of enforcing it specifically against the other, though its execution in the latter way might, in itself, be free from the difficulty attending its execution in the former.” (Marble Company v. Ripley, supra; see, also, Blackett v. Bates, L. R. [1 Ch. App.] 117; Beck v. Allison, 56 N. Y. 366.) In Beck v. Allison the action was brought by a lessee for the specific performance of an agreement made by the lessor to repair damages caused by fire, and the court held that specific performance of such a contract could not be decreed.
The case of Prospect Park & Coney Island R. R. Co. v. C. I. & B. R. R. Co. (144 N. Y. 160) presents an entirely different question. In that case the contract had been executed by the plaintiff, and execution had been commenced by the defendant. It was a contract between two railroad companies, by which the plaintiff granted to the defendant the use of certain of its tracks for a period of twenty-one years. The deféndant covenanted to run cars to the plaintiff’s depot, connecting with the trains of the latter. The parties acted under the contract for upwards of seven years, when the defendant ceased to run its cars to the plaintiff’s depot, and advised the plaintiff that it did not intend to do so. Thus the contract had been executed by the plaintiff, the court expressly finding that the plaintiff had substantially performed the contract on its part, and that, under the peculiar circumstances of that case, an injunction to enjoin the defendant from operating any of its cars, unless it performed its contract with the plaintiff, was not error. The provisions of the contract itself do not appear in the report. All we have from which we can judge of them is a statement of the court that “ the provisions of this contract are neither complicated nor difficult, and are such as a court of equity can enforce in its discretion.” In the case at bar the plaintiff had not performed its contract, and the provisions of the contract to be performed by both parties are both complicated and difficult, and such as a court of equity cannot enforce. The lack of mutuality which appears in this case was absent in that case.
In Johnson v. Shrewsbury & Birmingham Ry. Co. (3 De G., *579M. & G. *914); Brett v. East India & London Shipping Co. (2 H. & M. 404), and Merchants' Trading Co. v. Banner (L. R. [12 Eq.] 23), the injunctions were refused because, from the nature of the contracts, as the court could not have directed a specific performance at the suit of the defendants, it would not decree a specific performance of any part of the contracts at the suit of the plaintiffs. We must constantly bear in mind that this contract to be performed is an executory contract. An entirely different question would be presented if the contract had been performed by the plaintiff, so that the defendant had actually received the consideration for which it was to do the act which the plaintiff seeks to compel it to do by this decree; but from the examination that I have been able to give of the authorities, in an endeavor to formulate a rule which can be fairly deduced from them, it seems to me that an executory contract, the execution of which involves the performance of a continuous- series of acts, demanding the exercise of individual skill, discretion, taste or talent on the part of one of the parties which are of necessity incapable of judicial supervision or control will not be specifically performed in equity, and that where such a .contract is made thus incapable of being specifically performed by a judgment in equity, a negative clause in the contract which is merely an incident to the contract itself, and which from its terms purports to bind the party making it only during the time that the, contract is being actually executed, will not be specifically enforced in equity. For these reasons I think the judgment appealed from was right and should be affirmed.
Judgment reversed, with costs, with leave to defendants to withdraw demurrer and answer over on payment of costs in this court and in the court below.