We must dissent and vote to modify the judgment of the learned court at Special Term.
This is an .action by which the plaintiff, as the former employee of the defendant Cohen, seeks to restrain him and his new employer, the corporate defendant, from violating a con*180tract of employment heretofore existing between the plaintiff and the defendant Cohen, and for unfair competition.
The defendant Cohen was employed as a salesman by the plaintiff under a contract dated September 20, 1950, which contained the following restrictive covenant:
“So long as you continue in our employ, and for one year thereafter, you will not, directly or indirectly, sell to, solicit orders from, or make deliveries to, any of our customers who have an office or place of business in our territory, with respect to any article competing with articles sold by us; and you will not in any manner conduct a business in competition with our business in our territory. It is understood that this Company’s territory includes the City of New York, the Counties of Westchester, Suffolk and Nassau in the State of New York and the States of New Jersey and Connecticut.
“The non-competition provisions of this agreement shall not apply if we discharge you or terminate your employment without cause, at any time more' than six months subsequent to the date of this agreement. * * *
“Your employment is to continue indefinitely and may be terminated at any time either by you or by us upon one week’s written notice.”
As the result of a dispute, Cohen resigned from the plaintiff’s employ by letter dated October 19, 1956.
It has been suggested that the learned trial court made no finding as to whether Cohen resigned or was discharged. We can neither adopt nor accept that suggestion upon this record. The opinion of the trial court states in part, as follows: “On October 19, 1956, following a dispute, Cohen left the employ of the plaintiff corporation ”. In our view, this is an unequivocal finding by the court that the defendant resigned and was not discharged. The use of the word ‘ ‘ left ’ ’ rather than ‘‘ discharged ’ ’ is significant and conclusive. Moreover, had the trial court found that the defendant Cohen was discharged, there would have been no need to consider the question as to whether the plaintiff was entitled to injunctive relief on the basis of the cases cited in its opinion. If Cohen had been discharged, the restrictive covenant would have been inapplicable, and judgment for the defendants would have necessarily followed such a finding. The court, however, predicated its determination upon the fact that the relationship between the plaintiff and the defendant Cohen was not a confidential one and did not involve trade secrets. As already stated these issues would not have been reached if in fact there had been a discharge, as distinguished from a resignation.
*181We are in agreement with the majority that injunctive relief should be afforded the plaintiff, if Cohen resigned or voluntarily left his employ, and with the analysis of the cases cited in the opinion. Where we differ is upon the facts. As heretofore stated, we believe that the trial court found that the defendant Cohen resigned, and that such a determination is sustained by the credible evidence. The majority holds that Cohen was discharged.
The restrictive covenant providing that the defendant Cohen shall not solicit the plaintiff’s customers should be enforced, according to its terms, for a period of one year from the date of the defendant’s resignation; the injunction should prohibit the individual defendant from soliciting the customers or accounts which he formerly serviced for the plaintiff; and the matter remitted to Special Term to assess the plaintiff’s damages, if any.
There is no proof in the record that the corporate defendant either induced Cohen to breach his contract with the plaintiff, or that it knew of the existence of the contract. The judgment, therefore, in favor of the corporate defendant should be affirmed.
Under the circumstances, the judgment of the court below should be modified in accordance with this opinion.
Breitel, J. P., Valente and Bastow, JJ., concur in Per Curiam opinion; Frank, J., dissents and votes to modify in opinion, in which McNally, J., concurs.
Judgment affirmed, with costs.