I would affirm. Paragraph (B) of Neises’ agreement with Xerox provided that for two years after the termination of his employment with Xerox, he would '‘ not independently engage in xerography or, directly or indirectly, serve or advise in xerography or be employed in xerography by any individual, firm or corporation.”
The issue presented is whether the defendant, president of Dennison’s Copier Division, which is its xerographic division, is directly or indirectly serving, advising or employed in xerography. Xerography is defined in paragraph (E) as “ the art of forming and utilizing an electrostatic -charge pattern to make visible images ”. Since the Copier Division is engaged in xerography, it would seem to me that defendant as president and general manager and head of Dennison’s Copier Division is engaged in xerography. The contract, however, is not limited to engaging directly in xerography. It provides the defendant cannot engage in xerography or directly or indirectly serve or advise in xerography or be employed in xerography.
The injunction does not deprive defendant of his right to make a living. He is free to take any employment not in violation of the reasonable terms of the agreement. The temporary injunction does not prohibit him from working for Dennison; it merely prohibits him during the pendency of the action from being engaged in or employed in xerography. The injunction only restrains defendant in accordance with his agreement. Consequently, I would affirm the order appealed from.
Eager, J. P., and Struer, J., concur with Bastow, J.; McNally, J., dissents in opinion in which Rabin, J., concurs.
Order entered September 11, 1968, modified, on the law and on the facts, to strike subdivisions “ a ” in the second and third *200ordering paragraphs thereof and to provide for a trial of the issues at the January 1969 Term of the Supreme Court, New York County, and, as so modified, affirmed, without costs or disbursements.