The Riverside Theatre has been here enjoined without evidence of damage to plaintiff. It is about three miles away, at Ninety-sixth street, in a neighborhood totally different. Plaintiff has no vaudeville theatre, and does not show any purpose to open one. The agreement (A) was something more than an allotment of Manhattan territory. It treated of matters in other boroughs of New York city, and even in other States. It laid down an area west of Fifth avenue within which the Victoria Theatre and the Manhattan Opera House might thereafter make use of the United Booking Offices. The signers of this contract A were the stockholders of the United Booking Offices, in which plaintiff had no interest. Exhibit 0 set off for the Victoria Theatre the territory from Fortieth street to Forty-eighth street, and for the Manhattan Opera House a zone from Thirty-fourth street to Forty-second street; with right? in case either structure should be destroyed by fire or casualty, to rebuild or replace it.
Though not a signatory to A, plaintiff now asserts that through contracts B and 0 he became a full party to A, and entitled to enforce any and all its stipulations.
I think plaintiff’s stipulation for an injunction and to the corresponding $25,000 as partial damages was specially limited to protecting plaintiff within its territory as defined in Exhibit B, that is, between Thirty-second street and Fifty-sixth street. And this territory is materially different from that referred to in Exhibit A as left for the Victoria Theatre and the Manhattan Opera House. Plaintiff is not interested in a show at Ninety-sixth street. These three contracts in their elaborated terms and conditions bear marks of great and minute care. Doubtless there were reasons why these differing engagements were not united in a single instrument. The conditions of B to which plaintiff succeeds were “in the event that any one of them shall violate any of the covenants of this agreement, *200* * * any of the other parties hereto may apply for and obtain an injunction restraining the continuance of such breach, ” etc.
Plaintiff did not thereby become vested with this extreme remedy as to all matters provided in A. Suppose that -some signatory of A were, against its covenant, to invade by vaudeville shows Staten Island, Long Island City or Astoria, the field of the Keith & Proctor Company, and thereby increased the total of vaudeville shows in Greater New York. Could plaintiff have an injunction and $25,000 as stipulated “ partial dam- ' age ” for this new and distant theatrical attraction ? Even when plaintiff operated the Victoria Theatre it never objected to what was done outside the Victoria Theatre zone. The Prospect Theatre was erected in Brooklyn in 1914, and has since been operated as a vaudeville theatre without objection on the part of the plaintiff; and ever since February 11,1907, the United Booking Offices have booked artists for other theatres not parties to either of these contracts, all in the borough of Manhattan, without objection or protest from the plaintiff.
Such separated contracts, all elaborately framed to parcel out territory and so restrict theatrical competition, should not be enlarged. In order to make enforcible a negative covenant that will be of no practical avail to plaintiff, are we to merge and read into each other by judicial construction that which the parties have designedly kept distinct and separate?- I would limit an injunctive remedy to the redress of real wrongs.
Hence, I advise to reverse the order of the Special Term, with ten dollars costs and disbursements.
Jenks, P. J., and Rich, J., concurred, Thomas, J., read for affimance; Mills, J., voted to affirm.