author: Gabrielli, J.

text:
    Gerard F. McGowan, Individually and as Parent and Natural Guardian of Gerard A. McGowan, an Infant, Respondent, v Elton Smith et al., Respondents, and Adam Meldrum & Anderson Co., Inc., Defendant-Appellant and Third-Party Plaintiff-Appellant. Frederick Atkins, Inc., et al., Third-Party Defendants-Respondents.
    Argued January 8, 1981;
    decided February 19, 1981

      POINTS OF COUNSEL

      James D. Gauthier and Sheldon Hurwitz for defendant-appellant and third-party plaintiff-appellant.
    I. CPLR 302 (subd [a], par 1) establishes in personam jurisdiction over Mogi Trading Company, a Japanese company that engaged in purposeful activity in the State of New York. (Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443; Estwing Mfg. Co. v Singer Guardian, 382 US 905; Marx & Co. v Fuji Seiko Co., 453 F Supp 385; Iroguios Gas Corp. v Collins, 42 Misc 2d 632, 23 AD2d 823; Millner Co. v Noudar, LDA., 24 AD2d 326; Barrie Co. v Levine, 54 AD2d 642; Parke-Bernet Galleries v Franklyn, 26 NY2d 13; Delagi v Volkswagenwerk AG of Wolfsburg, Germany, 29 NY2d 426; McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377; American Contract Designers v Cliffside, Inc., 458 F Supp 735.) II. CPLR 302 (subd [a], par 3) also confers in personam jurisdiction over Mogi Trading Company- — the acts of Mogi causing serious injury to an infant plaintiff domiciled in New York, the goods having been purchased in New York by New York domiciliaries. (General Motors Acceptance Corp. v Richardson, 59 Misc 2d 744; Feathers v McLucas, 15 NY2d 443; Gonzales v Harris Calorific Co., 64 Misc 2d 287, 35 AD2d 720.)

      Andrew D. Merrick for Mogi Trading Company, third-party defendant-respondent.
    I. Defendant third-party plaintiff-appellant has the burden of proof to establish personal jurisdiction. (Badger v Lehigh Val. R. R. Co., 45 AD 2d 601.) II. Prefatory words are necessary prior to examining any jurisdictional question. (International Shoe Co. v Washington, 326 US 310; McGee v International Life Ins. Co., 355 US 220; Reiner & Co. v Schwartz, 41 NY2d 648; Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443.) III. Jurisdiction does not lie against Mogi by virtue of CPLR 302 (subd [a], par 1). (McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377; Delagi v Volkswagenwerk AG of Wolfsburg, Germany, 29 NY2d 426; Singer v Walker, 15 NY2d 443, cert den sub nom. Estwing Mfg. Co. v Singer Guardian, 382 US 905; Frummer v Hilton Hotels Int., 19 NY2d 533; Northern Structures v Union Bank, 57 AD2d 360; Boas & Assoc. v Vernier, 22 AD2d 561.) IV. The requirements of CPLR 302 (subd [a], par 3) have not been met. (Feathers v McLucas, 15 NY2d 443; Kramer v Hotel Los Monteros, S. A., 57 AD2d 756; Fantis Foods v Standard Importing Co., 49 NY2d 317; General Motors Acceptance Corp. v Richardson, 59 Misc 2d 744; American Eutectic Welding Alloys Sales Co. v Dytron Alloys Corp., 439 F2d 428.)
   OPINION OF THE COURT

Gabrielli, J.

' The infant plaintiff, a New York resident, was injured while visiting with friends in Ontario, Canada. The injuries allegedly were caused by the malfunctioning of a fondue pot, which had been shipped from Japan by Mogi Trading Co., a Japanese exporter, and purchased at a department store in Buffalo, New York. After having been served wit process in the instant action, the defendant department store attempted to implead Mogi Trading Co. as a third-party defendant, citing CPLR 302 (subd [a], par 1) and CPLR 302 (subd [a], par 3) as alternative predicates for the exercise of in personam jurisdiction. Special Term denied Mogi’s motion to dismiss the third-party complaint but the Appellate Division reversed, finding that neither of these two provisions supported the exercise of in personam jurisdiction over the nonresident third-party defendant. We agree with the conclusion reached by the Appellate Division and, accordingly, hold that the dismissal of the complaints against Mogi by that court was entirely proper.

Under CPLR 302 (subd [a], par 1), the courts of this State are authorized to exercise in personam jurisdiction over a nondomiciliary if the cause of action at issue arose out of the transaction of business within the State. It is well established, however, that the long-arm authority conferred by this subdivision does not extend to nondomiciliaries who merely ship goods into the State without ever crossing its borders (Kramer v Vogl, 17 NY2d 27; see McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C302:13, p 80). In addition to the shipment of goods into the State, there must have been some “purposeful activities” within the State that would justify bringing the nondomiciliary defendant before the New York courts (Reiner & Co v Schwartz, 41 NY2d 648; Hi Fashion Wigs v Hammond Adv., 32 NY2d 583; Parke-Bernet Galleries v Franklyn, 26 NY2d 13; compare Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, swpra, with McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377).

In an effort to establish the existence of such “purposeful activities” in this case, the third-party plaintiff department store relies upon several visits which representatives of Mogi Trading Co. made to New York for the purpose of doing general marketing research and ascertaining what type of products might be salable in New York. While these visits certainly may be characterized as “purposeful”, they cannot form the predicate for the exercise of in personam jurisdiction under CPLR 302 (subd [a], par 1) for the simple reason that they have not been shown to bear a substantial relationship to the transaction out of which the instant cause of action arose. Absent such a showing, the occurrence of these visits serves merely to establish Mogi’s transitory physical presence within the State. And, as we noted in Presidential Realty Corp. v Michael Sq. West (44 NY2d 672, 673), “physical presence alone cannot talismanically transform any and all business dealings into business transactions under CPLR 302 (subd [a], par [1])”.

Essential to the maintenance of a suit against a nondomiciliary under CPLR 302 (subd [a], par 1) is the existence of some articulable nexus between the business transacted and the cause of action sued upon (but cf. Singer v Walker, 15 NY2d 443). Indeed, it is this basic requirement that differentiates the long-arm authority conferred by CPLR 302 (subd [a], par 1) from the more traditional authority of the New York courts under CPLR 301 to exercise in personam jurisdiction over foreign defendants who are “present” within the State by virtue of their “doing business” here. Where jurisdiction is predicated upon the provisions of CPLR 301, there is no need to establish a connection between the cause of action in issue and the foreign defendant’s business activities within the State, because the authority of the New York courts is based solely upon the fact that the defendant is “engaged in such a continuous and systematic course of ‘doing business’ here as to warrant a finding of its ‘presence’ in this jurisdiction” (Simonson v International Bank, 14 NY2d 281, 285, supra; accord Frummer v Hilton Hotels Int., 19 NY2d 533). Where the plaintiff’s proof falls short of establishing such a “systematic course of ‘doing business’ ”, however, our statutory scheme permits him to bring the foreign defendant within the power of the New York courts upon a lesser showing of some business contacts within the State only if he demonstrates that his cause of action arose out of those business contacts.

Here, although it has been demonstrated that third-party defendant Mogi transacted some business within the State, there has been no proof to establish either that Mogi was engaged in a “systematic course of ‘doing business’ ” in New York or that the transitory business actually transacted here was sufficiently related to the subject matter of the lawsuit to justify the exercise of in personam jurisdiction under CPLR 302 (subd [a], par 1). Absent such proof, the bare fact that third-party defendant Mogi had some “purposeful” business contact with the State through its efforts to conduct general marketing research within its borders cannot furnish an adequate predicate for bringing the Japanese exporting firm within the power of the New York courts.

Nor may long-arm jurisdiction be premised in this case upon the provisions of CPLR 302 (subd [a], par 3). Under that subdivision, a nondomiciliary who “commits a tortious act without the state causing injury ** * * within the state” may be brought before a New York court to answer for his conduct if he has had sufficient economic contact with the State or an active interest in interstate or international commerce coupled with a reasonable expectation that the tortious conduct in question could have consequences within the State. Although most of the criteria set forth in this statute have been satisfied here, it is obvious that the provision is inapplicable, since there has been no allegation that the tortious conduct in question caused injury in New York. Indeed, the allegations in the pleadings clearly indicate that the situs of the injury was Ontario, Canada, where the accident involving the purportedly defective fondue pot occurred.

It has been argued that the residence of the injured party in New York should provide an adequate predicate for the exercise of in personam jurisdiction under CPLR 302 (subd [a], par 3), notwithstanding that the injury in this case actually occurred elsewhere. This contention is based, in turn, upon the assumption that CPLR 302 (subd [a], par 3), which was enacted after our decision in Feathers v McLucas (15 NY2d 443), was designed primarily to provide a convenient forum for litigation for New York domiciliaries who are injured by products manufactured in other jurisdictions. In view of the remedial purposes of the statute, it is argued, the mere fortuity that the injury occurred elsewhere should not be permitted to defeat jurisdiction where the injured party is a resident of New York and the product in question was originally purchased here by a New York consumer.

It is not our task, however, to decide whether the exercise of in personam jurisdiction on the basis of the injured party’s residence in New York would be desirable or even constitutionally permissible under the circumstances presented in this case. Rather, our task, at least in the first instance, is the far simpler one of determining whether the Legislature has in fact chosen to extend the long-arm authority of our courts in the manner suggested (see Feathers v McLucas, supra, at pp 459-460). We have already held in the context of a case involving a commercial tort that the residence of the injured party in New York is not sufficient to satisfy the clear statutory requirement of an “injury within the state” (Fantis Foods v Standard Importing Co, 49 NY2d 317, 326; but cf. Sybron Corp. v Wetzel, 46 NY2d 197). We can see no sound reason for ignoring the plain language of CPLB, 302 (subd [a], par 3) and reaching a contrary conclusion in this case.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed.

      . After defendant department store impleaded Mogi Trading Co., the infant plaintiff apparently amended his complaint in order to add Mogi as a party defendant. Although the Appellate Division order of dismissal refers only to “the complaint”, it is abundantly evident from the language of the opinion that court intended to dismiss both the complaint and the third-party complaint against Mogi.

      . In 1979, the Legislature amended CPLR 302 (subd [a], par 1) to enable the courts of this State to exercise personal jurisdiction over nondomiciliaries who contract “anywhere to supply goods or services in the state” where the cause of action in issue arises out of the contractual relationship (L 1979, ch 252). Inasmuch as the complaints in this case were served prior to the enactment of the amendment, we have no occasion to consider whether the new provision would furnish an alternate predicate for bringing third-party defendant Mogi before a New York court (see Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, 452-454; Simmonson v International Bank, 14 NY2d 281, 290).

      , CPLR 302 (subd [a], par 3) reads in its entirety as follows:
      “(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nondomiciliary, or his executor or administrator, who in person or through an agent:
      * * *
      “(3) commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he
      “(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
      “ (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce”.


source: Caselaw Access Project

author: Gabrielli, J. Jones, J.

license: Public Domain

text:
    Mohawk Maintenance Co., Inc., Respondent, v Irving G. Kessler et al., Appellants.
    Argued January 15, 1981;
    decided February 19, 1981

      POINTS OF COUNSEL

      Amos Alter and Mark Abramowitz for appellants.
    I. No restrictive covenant may last forever. (Diamond Match Co. v Roeber, 106 NY 473; Reed, Roberts Assoc. v Strauman, 40 NY2d 303; Gelder Med. Group v Webber, 41 NY2d 680; Columbia Ribbon & Carbon Mfg. Co. v A-1-A Corp., 42 NY2d 496; American Yearbook Co. v St. Pierre, 56 AD2d 832; Legal Recording & Research Bur. v Wicka, 62 AD2d 486; Fuller Co. v Hagen, 363 F Supp 1325; Matter of Sprinzen [Nomberg), 63 AD2d 939; Post v Merrill Lynch, Pierce, Fenner & Smith, 48 NY2d 84.) II. There may not be here implied a covenant against solicitation which lasts forever. (Von Bremen v MacMonnies, 200 NY 41; Martocci v Greater N. Y. Brewery, 301 NY 57; Zupan v Blumberg, 2 NY2d 547.)

      Stephen A. Marshall and Martin J. Schwartz for respondent.
    I. Defendants were properly enjoined from soliciting Mohawk’s customers. (Von Bremen v MacMonnies, 200 NY 41; Thal v Polumbaum, 196 Misc 897, 277 App Div 1115, 303 NY 686; Planet Mfg. Corp. v Goldstein, 54 AD2d 896; Goldstein v Maisel, 271 App Div 971; Gast Furriers Supplies v Winter, 247 App Div 135; Kremer v Kremer, 221 App Div 747; Cliffcorn Answering Serv. v Deutschel, 23 Misc 2d 254; Matter of Brown, 242 NY 1; Tierney Sons v Tierney Bros., 130 Misc 428.) II. Public policy does not require that an injunction against solicitation of former customers be temporally limited. (Karpinski v Ingrasci, 28 NY2d 45; Diamond Match Co. v Roeber, 106 NY 473; Goos v Pennisi, 10 AD2d 643; Goldstein v Maisel, 271 App Div 971; Horne v Radiological Health Servs., 83 Misc 2d 446, 51 AD2d 544; Defler Corp. v Kleeman, 19 AD2d 396, 19 NY2d 694; Humble Oil & Refining Co. v Trenck, 18 AD2d 899,13 NY2d 707.)
   OPINION OF THE COURT

Gabrielli, J.

Defendants appeal by permission of the Appellate Division, First Department, from an order of that court which affirmed, with slight modification, an order of the Supreme Court, New York County, granting partial summary judgment to plaintiff and enjoining defendants indefinitely from soliciting the patronage of defendant Kessler’s former customers. The order appealed from rests upon the premise that defendants have a legal duty to refrain from acting to impair the “good will” which defendant Kessler had transferred to plaintiff in connection with the sale of his business and that this duty exists independent of any additional obligations undertaken by Kessler pursuant to certain express restrictive covenants contained in the contract of sale. We find this premise to be legally sound and, accordingly, hold that the order of the court below should be affirmed. In so holding, we necessarily conclude that the duration of defendants’ duty to refrain from soliciting certain of plaintiff’s customers is not in any way limited by the durational provisions contained in the express restrictive covenants or by the legal principle derived from our cases that express covenants restricting competition must be reasonable in scope.

The instant litigation arises out of the October 10, 1972 sale of defendant Kessler’s controlling shareholder’s interest in Mohawk Maintenance Co. to plaintiff’s predecessor for the sum of $2,000,000. Since its incorporation in 1952, Mohawk had been engaged in the business of providing building maintenance services in the tri-State area encompassing New York, New-Jersey and Connecticut and had developed an impressive list of customers largely through the efforts of defendant Kessler, the firm’s president and principal shareholder. In connection with the sale of the business, Kessler agreed that he would not “either as owner, partner, officer, employee, agent, consultant manager, lessee or lessor or in any other capacity, directly or indirectly * * * carry on or engage * * * in any business competitive with any business carried on by [Mohawk]” for a period of five years after the closing date of the sale. The geographical scope of the restriction on Kessler’s business activities was confined to New York, Connecticut and any other State where Mohawk was actively doing business on the date of contract closing. Additionally, it was agreed between the parties that Kessler would continue to work for Mohawk as an employee for a period of three years and that the provisions of his employment contract would continue in force if he elected to remain with the company after his initial term of employment ended. The employment agreement also contained an anticompetition clause which precluded Kessler from engaging in any rival business “ [f] or a period of 24 months after the termination of this agreement”.

Kessler remained in Mohawk’s employ until August of 1978, when he voluntarily resigned his position. Shortly thereafter, he formed a new corporation, Sure-Way Maintenance Services, and began once again to engage in the business of providing building maintenance services. It is not seriously disputed that Kessler’s new business was competitive in certain respects with the business carried on by Mohawk. Indeed, the affidavits submitted to Special Term indicate that Kessler may have approached at least one of his former customers in an effort to lure its patronage away from Mohawk.

On January 23, 1979, Mohawk commenced the instant action seeking damages and a permanent injunction to prevent Kessler and Sure-Way from competing with it until August of 1980, the date that Mohawk claimed would mark the expiration of the anticompetition clause in defendant Kessler’s employment agreement. Additionally, Mohawk sought an order permanently restraining defendants from soliciting the patronage of Kessler’s former Mohawk customers.*

Upon Mohawk’s motion for partial summary judgment, defendant Kessler took the position that any obligations he may have had to refrain from competing with Mohawk were terminated, at the latest, on October 9, 1977, 24 months after the original employment agreement expired. Thus, Kessler argued, .the decision by him in 1978 to enter into a competing enterprise could not have constituted a breach of the terms of the agreement. Special Term, however, rejected Kessler’s contentions, finding that the contractual limitations on his freedom to compete were intended to remain in effect for the 24-month period following the actual termination of his employment with Mohawk and not, as he contended, for the 24-month period following the expiration of his original three-year term. Since defendant Kessler had not actually left Mohawk’s employ until August of 1978, Special Term reasoned, he should be prevented from competing-with that firm until August of 1980. The lower court also issued an injunction permanently restraining defendants from soliciting the patronage of those customers who had been actively dealing with Mohawk in 1972, when the business was transferred to plaintiff’s predecessor. Noting that the 1972 sale of the business included an implicit transfer of tie firm’s existing “good will”, Special Term held that would be clearly inequitable” to permit defendants to impair that asset by luring such customers away from Mohawk’s present owners. Finally, after concluding that plaintiff was entitled to partial summary judgment, the court directed that a trial be held in order to assess plaintiff’s interim damages.

On defendants’ appeal to the Appellate Division, the determination of Special Term was affirmed with one minor modification. While the Appellate Division basically indorsed the reasoning of the lower court, it found it necessary to amend the court’s order to make clear that the direction forbidding solicitation of the customers being serviced by Mohawk at the time the business was sold did not prevent defendants from accepting the patronage of those customers who voluntarily leave Mohawk and, without urging by defendants, request the services of Kessler’s new firm. The Appellate Division subsequently granted defendants leave to appeal to this court and certified the following decisive question of law: “Was the order of this Court, which modified the order of the Supreme Court, properly made?” Preliminarily, we note that, for purposes of the present appeal, defendants have abandoned their contention that the anticompetition clause in Kessler’s employment agreement was effective only until October 9, 1977. Anticipating that their appeal would not be considered or decided by the Court of Appeals until after August of 1980, defendants elected not to press their challenge to that part of the Appellate Division order which enjoin's them from competing with Mohawk until that date has passed, since, in their view, the matter is now academic. Defendants have thus limited the issue in the present appeal to the narrow question of the propriety of the lower court’s direction that they refrain indefinitely from soliciting the patronage of those Mohawk customers who were being serviced by the firm at the time it was sold to plaintiff. Whi/le defendants do not seriously dispute that they had a legal duty to refrain from soliciting such customers for a reasonable period of time after the transfer of the business to plaintiff, they do argue vigorously that the enforcement of this duty for an indefinite period is contrary to law. This contention is based, in turn, upon what defendants perceive to be the “modern view” that express covenants restricting competition may be enforced only to the extent that they are reasonable in geographic scope and duration. Since the law looks with disfavor upon agreements which purport to impose permanent limitations upon a party’s freedom to compete, according to defendants, it should similarly reject the notion that the legal duty to refrain from soliciting former customers is of indefinite duration.

We cannot embrace the proposition advanced by defendants, however, because, in our view, it fails to take into account the important distinction between the duty to refrain from soliciting former customers, which arises upon the sale of the “good will” of an established business, and separate duty to refrain from competing with the purchaser, which may only arise out of an express agreement such as that contained in defendant Kessler’s employment contract. When a business is sold, the purchaser acquires no legal right to expect that the seller will refrain from engaging in a competing enterprise. Indeed, the seller remains free to pursue his own economic interests without restraint unless the purchaser has managed to extract from him an express promise to refrain from competing (Von Bremen v MacMonnies, 200 NY 41, 47-48).

At one time in the early history of the common law, such promises were routinely held to be unenforceable, since they were deemed to be violative of the strong public policy in favor of encouraging free trade and discouraging monopolies (see Addyston Pipe & Steel Co v United States, 175 US 211; 14 Williston, Contracts [3d ed], §§ 1635-1636). Later, however, the inflexible approach of the judiciary to such agreements was relaxed to some extent as the courts came to realize that a blanket prohibition against agreements purporting to restrain trade was contrary to the equally strong public policy in favor of allowing individuals to dispose of their property freely and to enter into binding contracts (see Purchasing Assoc. v Weitz, 13 NY2d 267, 271; Leslie v Lorillard, 110 NY 519, 532-533) . Ultimately, agreements restricting the parties’ right to compete were recognized by the courts and were held fully enforceable if the restrictions were found to be “reasonable” in geographic scope and duration (see, e.g., Karpinski v Ingrasci, 28 NY2d 45; Wirth & Hamid Fair Booking v Wirth, 265 NY 214; see, generally, 6A Corbin, Contracts, § 1386). Indeed, the modern trend in the case law seems to be in favor of" according such covenants full effect when they are not unduly burdensome, particularly in cases where the agreement in question is made in connection with the sale of a business and its accompanying “good will” (see Reed, Roberts Assoc. v Strauman, 40 NY2d 303, 307; Purchasing Assoc. v Weitz, 13 NY2d 267, 271, supra; Hackenheimer v Kurtzmann, 235 NY 57; Diamond Match Co. v Roeber, 106 NY 473). 6 Nevertheless, as defendants correctly point out, the requirement that such covenants be “reasonable” in scope has never been completely abandoned and remains an important part of our case law.

We see no sound reason, however, to extend the test of durational “reasonableness” to cases such as this which involve only the so-called “implied covenant” to refrain from soliciting former customers following the sale of the “good will” of a business. This “implied covenant” restricts the economic freedom of the seller only insofar as it precludes "him from approaching his former customers and attempting to regain their patronage after he has purported to transfer their “good will” to his purchaser. As such, the “implied covenant” imposes a much narrower duty than do express covenants purporting to restrict the seller’s right to compete in a particular geographical area or field of endeavor. Accordingly, this “implied covenant” might well be regarded as inherently “reasonable”, notwithstanding its indefinite duration (cf. Karpinski v Ingrasci, 28 NY2d 45, 50, supra [covenant restricting competition for an unlimited period of time may be enforced if it is sufficiently limited in geographic scope]).

More importantly, the right acquired by the purchaser of the “good will” of a business by virtue of this “implied covenant” must logically be regarded as a permanent one that is not subject to divestiture upon the passage of a reasonable period of time. Indeed, it may be somewhat misleading to describe the duty of the seller to refrain from soliciting his former customers as one emanating from an “implied covenant”, since the duty is, in reality, one imposed by law in order to prevent the seller from taking back that which he has purported to sell. When the intangible asset of good will is sold along with the tangible assets of a business, the purchaser acquires the right to expect that the firm’s established customers will continue to patronize the business (see, generally, People ex rel. Johnson Co. v Roberts, 159 NY 70, 80-84; Churton v Douglas, Johns Eng Ch, p 174; Cruttwell v Lye, 17 Ves, Jr, 335, 346). The essence of the transaction is, in effect, an attempt to transfer the loyalties of the business’ customers from the seller, who cultivated and created them, to the new proprietor. Of course, the attempted transfer may not be entirely successful, in that some of the firm’s customers may choose to take their business elsewhere as a consequence of the change in ownership. Indeed, the occurrence of a certain amount of attrition is one of the risks that the purchaser must assume when he acquires an established business.

It is quite another matter, however, when the seller actively interferes with the purchaser’s relationship with his newly acquired customers by capitalizing upon their personal loyalties to him in an effort to recapture their patronage. When the seller conducts himself in such a manner, he is, in effect, directly impairing the very asset which he has purported to transfer — the “good will” of his former business.

It is to prevent such an eventuality that the law imposes upon the seller a specific duty to refrain from soliciting his former customers after he has sold his business and the accompanying “good will” to another. As we stated in the leading case in this jurisdiction, Von Bremen v MacMonnies (200 NY2d 41, 50-51, supra, quoting Trego v Hunt [L E (App Cas, 1896) 7]), “ ‘ [a] man may not derogate from his own grant; the vendor is not at liberty to destroy or depreciate the thing which he has sold; there is an implied covenant, on the sale of good will, that the vendor does not solicit the custom which he has parted with; it would be a fraud on the contract to do so’ ”.

In light of the rationale underlying the rule prohibiting the seller from soliciting the patronage of his former customers, it would make little sense for us to hold that the prohibition should be lifted after a “reasonable” time has passed following the transfer. A purchaser who acquires the “good will” of a business pays good and valuable consideration for the seller’s implied promise to do everything within his power to transfer the loyalties of his customers to the new proprietor. At the very least, the purchaser obtains the exclusive right, as between himself and the seller, to exploit the established loyalties of the firm’s customers for the benefit of his newly acquired business. The expectation in the purchaser that arises as a result of the transaction is clearly a vested property right of indefinite duration (see 14 Williston, Contracts [3d ed], § 1640, at pp 118-119, n 6). It would make no more sense to hold that the seller may attempt to defeat this right by soliciting his former customers after the passage of a “reasonable” period of time than it would to hold that the seller of a business may re-enter and attempt to retake the premises and tangible assets of the firm after a “reasonable” time has expired.

In the present case, there can be little doubt that a transfer of “good will” was intended, even though the contract of sale did not expressly provide as much (cf. Merry v Hoopes, 111 NY 415; see, also, 25 NY Jur, Good Will, § 13). The circumstances surrounding the sale, particularly the size of the purchase price and the existence of express covenants barring competition by the seller, provide persuasive proof that defendant Kessler did indeed intend to part with Mohawk’s “good will” along with its tangible assets when he sold the business to plaintiff’s predecessor. Inasmuch as defendants have failed to produce any concrete evidence to the contrary upon the present motion for summary judgment, the issue must be resolved against them.

Since there is no doubt that the “good will” of Mohawk passed to the purchaser when the business was sold, it follows from our holding that plaintiff is entitled to enjoy the use of this intangible asset indefinitely without interference by defendants. Although defendants may accept the patronage of those customers who were actively dealing with Mohawk on the date of the sale if such customers choose to leave Mohawk without prompting from defendants, the defendants remain under a positive and permanent duty to refrain from interfering with the rights acquired by plaintiff as a result of its acquisition of Mohawk’s “good will”. Accordingly, defendants were properly enjoined from soliciting the business of defendant Kessler’s former customers, and the fact that the injunction establishes a permanent restraint does not provide an adequate ground for challenging the order of the court below.

For the foregoing reasons, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Jones, J.

(dissenting). I am in agreement with the dissenters at the Appellate Division that this case is taken out of the general rule on which the majority relies by the “express treaty” of the parties. I would, therefore, vote to reverse and hold that defendant Irving Kessler was free from any obligation not to solicit his former customers after August 1, 1980.

The terms of the 1972 sale of Kessler’s 90% interest in plaintiff corporation to International Telephone and Telegraph Corporation for stock in the latter corporation were set out in a detailed and carefully drafted “Agreement and Plan of Reorganization” dated as of May 5, 1972. Dealing with over $2,000,000 worth of stock, that agreement, among other extensive and detailed provisions, contained the following paragraph:

“The following Stockholder is to execute non-competition undertakings upon the terms indicated ;

“Irving Kessler to undertake that he will not, either as owner, partner, officer, employee, agent, consultant manager, lessee or lessor or in any other capacity, directly or indirectly (a) for a period of 5 years after the Closing Date carry on or engage in New York or Connecticut (or such other state where the Corporations are conducting business on the Closing Date) in any business competitive with any business carried on by the Corporations on the Closing Date; and (b) for a period of one year from the Closing Date hire or otherwise engage any person employed by the Corporation during the six month period prior to the Closing Date.”

Incident to the closing of the sale on October 10, 1972, Kessler, in conformity with the provisions of their May contract, signed and delivered to ITT a letter implementing his noncompetition agreement in haec verba. At the same time, but incident to a separate agreement between plaintiff and Kessler for the continued employment of the latter, Kessler also expressly agreed not to compete with plaintiff for a period of 24 months following termination of his employment. It is not disputed that Kessler’s employment was terminated on August 1, 1978, and no contention is made that his obligations under the restrictive covenant in his employment contract did not accordingly expire on August 1, 1980.

It is recognized that there normally accompanies the voluntary sale of the good will of a commercial entity an implied obligation on the part of the seller not at any time in the future to solicit those who were customers of the business enterprise at the time of the sale — in effect an agreement not in bad faith to depreciate the value of what has been voluntarily sold (e.g., Von Bremen v MacMonnies, 200 NY 41). The majority at the Appellate Division and now the majority in our court, in reliance on that general proposition, hold that plaintiff corporation is entitled to bar Kessler forever from soliciting the business of those customers who were being served by him in October, 1972. I would concur in such a conclusion, had it not been that the contracting parties themselves, by their own express agreement, made explicit provision for what was judged by them at the time of the sale to be appropriate and sufficient for the protection of the interests of the buyer, namely, a period of five years during which Kessler would not compete with plaintiff corporation in any way, directly or indirectly — a very much broader restriction than the mere obligation not to solicit old customers. It cannot be disputed that ITT as purchaser could have agreed, effectively and legally, to limit its right to enforce any implied obligation not to solicit old customers to a period of five years following the purchase (cf. George v Burdusis, 21 Cal 2d 153). Where the parties have expressly contracted in particularized detail as to their mutual obligations and rights with respect to a specific topic, customarily the courts do not overlay additional implied terms. I fail to perceive why, in view of the express agreement drafted by these parties, the law in this instance should imply obligations at variance with that agreement. Further, it would be wholly unrealistic to conclude that, because of the omission of explicit reference to an obligation not to solicit, ITT and Kessler did not intend in the quoted paragraph to express their entire agreement with respect to the protection of the business interest of ITT against future competition by Kessler. The business sophistication of ITT would make ridiculous any suggestion either that Kessler without an awareness by ITT was trying by devious means to evade what would otherwise have been his obligation not to solicit his former customers, or that ITT by studied silence was contriving to keep alive an implied obligation on the part of Kessler never to solicit his former customers. I can only conclude that both buyer and seller fully comprehended the situation and carefully tailored the details of a specific noncompetition agreement to meet the needs of the particular transaction; the court should not vary that agreement.

I could not accept any analysis, at least in the circumstances of this case, that an implied obligation not to solicit and an agreement not to compete did not relate to the same subject matter and accordingly were viewed by the parties as the subjects of discrete, separate consideration (cf. Bergum v Weber, 136 Cal App 2d 389). Whatever refinements may now be verbalized, the concern of the parties was with the protection of the business interests that ITT was acquiring against competition by Kessler. Any obligation here not to solicit is but a particularized aspect of the much broader and more constraining covenant not to compete (cf. Goldstein v Maisel, 271 App Div 971 — in action to enforce an express covenant not to compete determined to be unreasonably broad in scope, agreement enforced in part not only by a geographically limited prohibition against all competition but also by imposition of a previously unexpressed, geographically unrestricted obligation not to solicit former customers for the period of the express covenant).

Not only should the terms of the agreement made by the parties themselves be held to prevail on general principles of contract interpretation, but especially is this so in the light of the provisions of section 340 of the General Business Law which declares public policy against restrictive agreements. That this declaration does not foreclose a buyer from extracting from a seller a reasonably restrictive agreement should not be inflated to support a determination that even when the parties do make an express agreement the law may imply a still more restrictive obligation.

Accordingly, I would reverse the order of the Appellate Division and hold that no noncompetition, nonsolicitation obligations of Kessler survived the expiration date of August 1,1980.

Chief Judge Cooke and Judges Wachtler and Fuchsberg concur with Judge Gabrielli; Judge Jones dissents and votes to reverse in a separate opinion in which Judges Jasen and Meyer concur.

Order affirmed, etc.

      . By its terms, the anticompetition clause in the contract governing the sale of the business expired on October 9, 1977, five years after the date of the closing. Mohawk did not seriously contend that defendants’ conduct, which began in the latter part of 1978, constituted a breach of that contractual provision.

      . At the time the action was commenced, Mohawk sought and received a temporary restraining order. Thereafter, it successfully moved for a preliminary injunction to prevent defendants from taking further action pending final disposition of the litigation.

      . Defendants have purported to “reserve their rights” to challenge this aspect of the lower court’s ruling if plaintiff chooses to pursue its claim for damages arising from their alleged breach of the restrictive covenant contained in the employment agreement. We express no view as to the effectiveness of this attempted “reservation of rights”.

      , The change in judicial attitudes toward such agreements was also occasioned by a growth in trade and a concomitant expansion in the range of available economic opportunities (see Wood v Whitehead Bros., 165 NY 545, 550-551).

      . Defendants have suggested in their briefs that express covenants restricting competition are scrutinized more carefully by modern courts than they were in the distant past. This suggestion, however, is simply not supported by the case law.

      . The purchaser of a business may protect himself at least against the possibility that some of his customers will voluntarily follow the seller by negotiating a reasonable express covenant restricting the seller’s freedom to engage in a competing business (see, e.g., Sander v Hoffman, 64 NY 248). Absent such a covenant, however, there are no rules of law which would prevent the seller from accepting the trade of his former customers, provided that he does not actively solicit such trade (Von Bremen v MacMonnies, 200 NY 41, 47-49, supra).

       I note in passing that the “Agreement and Plan of Reorganization” in paragraph (d) of section 19 also contained the familiar provision that “This Agreement * * * embodies the entire agreement and understanding, and supersedes all prior agreements and understandings between the Stockholders and ITT relating to the subject matter hereof”.


text:
    Bartlett H. Holt et al., Respondents, v Stanley Feigenbaum, Appellant.
    Submitted January 9, 1981;
    decided February 24, 1981

      POINTS OF COUNSEL

      Richard E. Fahrenz for appellant.
    I. Issues exist relative to material facts requiring a denial of summary judgment relief to plaintiffs. (Wanger v Zeh, 45 Misc 2d 93, 26 AD2d 729; Weiss v Garfield, 21 AD2d 156; Jones v Bacon, 145 NY 446; Hartford Acc. & Ind. Co. v Black, 265 App Div 524; Church v Brown, 21 NY 315; Hauswald v Katz, 216 App Div 92.) II. Assuming the court found defendant obligated under the agreement, defendant is entitled to a hearing on the issue of damages. (Doyle v Allstate Ins. Co., 1 NY2d 439; Gray Mfg. Co. v Pathe Inds., 33 AD2d 739, 26 NY2d 1045.)

      Charles O. Ingraham for respondents.
    The cross indemnification agreement is valid and enforceable. (Grossman v Schenker, 206 NY 466; Jacobus Transp. Co. v Gallagher Bros. Sand & Gravel Corp., 161 F Supp 507; Rosenthal-Porzellan AG. v Steelmasters, Inc., 29 Misc 2d 222; Noto v Satloff, 38 Misc 2d 915; Mazzella v Lupinachi, 70 Misc 2d 458; County Trust Co. of N. Y. v Mara, 242 App Div 206; Allegheny Coll. v National Chautauqua County Bank of Jamestown, 246 NY 369; Homer v Sidway, 124 NY 538; Atlas v Wood, 33 Misc 2d 543,17 AD2d 821; Hartford Acc. & Ind. Co. v Black, 265 App Div 524.)
   OPINION OF THE COURT

Gabrielli, J.

In the instant appeal, we are called upon to retrace some of the fundamental principles of contract law and to determine whether defendant’s written promise to indemnify his coshareholders against disproportionate loss was supported by legally sufficient consideration. Inasmuch as the promise by defendant induced his coshareholders to incur a specific, “bargained for” detriment, we conclude that there was sufficient consideration for his promise and that the promise is therefore enforceable at law, notwithstanding the fact that defendant may have enjoyed no direct benefit as a result of the bargain.

Each of the parties in the present appeal was a shareholder in Mobile Modular Industries, Inc., a corporation which was formed by them in 1970. Approximately one year after its formation, the corporation, finding itself in need of additional capital, approached the First National City Bank of Binghamton and requested a loan. First National City agreed to extend the corporation a $100,000 line of credit, but insisted that each of the shareholders of the corporation, in exchange, execute a personal guarantee for the full amount of any moneys actually loaned to the corporation. Most of the shareholders, including plaintiffs, complied with the bank’s request and executed individual guarantees which committed them to repaying the bank personally in the event that the corporation defaulted. Defendant, however, failed to make a similar commitment to the bank.

In conjunction with the execution of these guarantees, all of the shareholders, including defendant, also entered into a cross-indemnity agreement, in which each promised to contribute a pro rata share of the loss if any one of their number was held liable to the bank as a result of his personal guarantee for the full amount of the loan. The agreement provided, in pertinent part, as follows:

“whereas, the Guarantors are each stockholders of Mobile Modular Industries, Inc. * * * and,

“whereas, as an inducement for and as a condition of the grant of a line of credit in a total amount not to exceed $100,000.00 * * * the Guarantors have jointly and severally guaranteed the payment of Mobile Modular’s default * * * and

“whereas, by the virtue of the aforesaid joint and several Guaranty, the Bank, in the event of Mobile Modular’s default * * * has the right to seek recovery for the entire loan from anyone and less than all of the Guarantors; and

“whereas, the Guarantors are desirous of avoiding and protecting against any event whereby less than all of them would be held other than proportionately liable for the aforesaid Guaranty and to provide by this Agreement an indemnification by and to each other to accomplish such result.

“NOW, therefore, in consideration of the promises and of the mutual promises herein contained, and other good and valuable consideration, it is agreed as follows:

“1. The limit of any one Guarantor’s liability under the Guaranty shall not exceed [his] proportionate share * * * unless any Guarantor becomes bankrupt or insolvent, in which event any resulting deficiency shall be paid by the solvent Guarantors in proportion to their liability for the loss.

“2. In addition, each Guarantor agrees to indemnify and hold the other Guarantors harmless to the extent of his proportionate share of the liability for the loss (unless any Guarantor becomes bankrupt or insolvent) in the event [that] any one or more but less than all of the Guarantors are required to pay or pays the loan to the Bank”.

The corporation defaulted on its obligation to the bank in 1973, and the bank promptly sought payment from the individual guarantors, eventually recovering the full outstanding amount from six of the Mobile Modular shareholders. These six shareholders, in turn, attempted to recover the amounts they had paid in excess of their pro rata shares by demanding contribution from their coshareholders in accordance with the above-quoted cross-indemnity agreement. The instant lawsuit ensued when defendant declined to honor his pledge under the agreement.

Upon cross motions by the parties for summary judgment, Special Term held in favor of plaintiffs, rejecting defendant’s argument that his promise to indemnify plaintiffs was unenforceable due to a lack of legally sufficient consideration. With respect to defendant’s argument that he could not be held liable on his promise to indemnify plaintiffs because he had never executed a personal guarantee in favor of the bank and therefore could not have benefited from plaintiffs’ reciprocal promises to indemnify him, Special Term simply held that he should be estopped from denying that he was a guarantor, since he had represented himself as a guarantor in the cross-indemnity agreement and had induced the other shareholders to act in reliance upon his representation. Accordingly, Special Term granted judgment for plaintiffs in the amount demanded in their complaint.

The Appellate Division affirmed the judgment of Special Term, with two Justices dissenting. In response to defendant’s contention that his promise was unsupported by legally sufficient consideration, the Appellate Division observed that “[djefendant benefited when the bank loaned the funds to the corporation and all the stockholders who signed the cross indemnification agreement assumed potential liability to each other” (75 AD2d 676, 677). Thus, the court reasoned, plaintiffs had, in fact, conferred a benefit upon defendant, rendering his promise to indemnify them fully binding.

We agree with the Appellate Division that the judgment in favor of plaintiffs should be affirmed, but we would employ a slightly different line of reasoning in support of our conclusion. Defendant maintains that his promise to indemnify plaintiffs cannot be enforced because their return promises to indemnify him against excess liability to the bank were essentially meaningless. This conclusion flows logically from the fact that defendant had never signed a personal guarantee covering the corporation’s debt to the bank and, consequently, could not have been held liable to the bank if the corporation defaulted. Inasmuch as he could not have realized any direct benefit as a result of plaintiffs’ promises to indemnify him, defendant argues, those promises cannot be treated as legally sufficient consideration for his promise to indemnify plaintiffs.

The central fallacy in defendant’s argument is its implicit assumption that the abstract concept of legally sufficient consideration necessarily entails a benefit flowing to the promisor. This assumption is without support either in the historical roots of the doctrine of consideration or in its contemporary application. Indeed, the modern requirement that a promise be supported by legally sufficient consideration cannot be understood without reference to the ancient forms of action and the related rules of pleading.

During the early phases of the development of English common law, an action on an obligation other than one embodied in a sealed instrument was maintainable only through a writ to recover on a debt. The availability of such writs, however, was limited to those narrow situations in which one of the parties withheld payment of a fixed, bargained for sum of money after the other party had performed his part of the bargain by making a loan or delivering goods or services. The underlying theory of the action was that the parties had made a bargain or had agreed upon a quid pro quo exchange and the promisor or debtor was now wrongfully withholding the property of the promisee by refusing to make payment after receiving that which he had bargained for. It was from this concept of a bargained for quid pro quo that the notion of consideration as a benefit flowing to the promisor was derived (see 1 Corbin, Contracts, § 121; Morgan, Introduction to the Study of Law [2d ed], pp 92-93; 1 Williston, Contracts [Jaeger 3d ed], §99; Holmes, Early English Equity, 1 LQ Rev 162, 171).

The action on a debt, however, proved unsatisfactory for a variety of reasons, not the least of which was its limited scope. Litigants, as a consequence, turned with increasing frequency to the vehicle of assumpsit, which was originally a simple variant of trespass on the case, the forerunner of our modern tort cause of action (see Ames, History of Assumpsit, 2 Harv L Rev l). Although assumpsit ultimately evolved into a separate and distinct form of action, its earliest uses were confined to claims based upon malfeasance or faulty performance of an assumed duty (see Williston, at p 384). Consistent with its origins in trespass on the case, the gist of the action in assumpsit remained the injury to the promisee resulting from the promisor’s misconduct in improperly performing his obligation. It was apparently not until 1588 that assumpsit was definitively expanded to encompass actions for nonfeasance or simple failure to perform a contractual duty. In that year, it was held that “a promise against a promise will maintain an action upon the case [in assumpsit], as in consideration that you do give me £ 10 on such a day, I promise to give you £ 10 such a day after” (Strangborough and Warner’s Case, 4 Leon 3, 74 Eng Rep 686 [QB]). With this expansion in the availability of assumpsit, the original requirement of an injury resulting from misfeasance was broadened, and an action in assumpsit could thereafter be maintained upon a showing of any detriment, loss or disadvantage to the promisee arising from the bargain (see, generally, Holdsworth, Debt, Assumpsit and Consideration, 11 Mich L Rev 347).

The final critical development in the law of assumpsit occurred in 1602 with the decision in Slade’s Case (4 Coke 91a, 92b, 76 Eng Rep 1072, 1074 [KB]). That decision paved the way for litigants to sue in assumpsit on claims for fixed sums of money previously maintainable only in the older form of an action based on a quid pro quo to recover a debt (see Moses v Macferlan, 2 Burr 1005, 1008, 97 Eng Rep 676 [KB]). As a result of this development, assumpsit became the primary vehicle for litigation on contractual obligations, and the notion of “consideration” became a term of art encompassing both a benefit to the promisor, the equivalent of the former quid pro quo, and a detriment to the promisee, the equivalent of the former requirement of injury in actions sounding in assumpsit (see Williston, at pp 368-369).* **

This dual notion of consideration as either a benefit to the promisor or a detriment to the promisee has persisted to the present day and has become an integral part of our modern approach to the enforceability of contracts. Thus, it has repeatedly been stated that “ ‘ [a] valuable consideration may consist of some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other’ ” (Rector of St. Mark’s Church v Teed, 120 NY 583, 586, quoting 3 Am & Eng Cyclopedia of Law, p 831; accord Allegheny Coll. v National Chautauqua County Bank of Jamestown, 246 NY 369, 373; Walton Water Co. v Village of Walton, 238 NY 46, 50-51; Union Bank of Brooklyn v Sullivan, 214 NY 332, 339; Restatement, Contracts 2d, §75). Indeed, we have expressly held that a promisee who has incurred a specific, bargained for legal detriment may enforce a promise against the promisor, notwithstanding the fact that the latter may have realized no concrete benefit as a result of the bargain (Melville v Kruse, 174 NY 306; Hamer v Sidway, 124 NY 538).

Under this broader view of the doctrine of consideration, there can be no doubt that the contract at issue in this case is enforceable against defendant Feigenbaum. First and most obviously, consideration to support defendant Feigenbaum’s promise to indemnify plaintiffs may be found in plaintiffs’ contemporaneous promises to indemnify each of their fellow shareholders against excess loss in the event that Mobile Modular defaulted on its obligation to the bank. While these promises may not have had any potential value to defendant since he was not personally at risk in connection with the loan to the corporation, it cannot be denied that they represented a detriment to plaintiffs, who had assumed the added duty of sharing the cost of the corporation’s default with each of the other shareholders by virtue of the cross-indemnity agreement. Since this detriment was precisely what defendant had bargained for under the terms of that agreement, he cannot now avoid his own promise by claiming that it was not supported by legally sufficient consideration.

Consideration for defendant’s promise may also be found in plaintiffs’ separate promises to the bank to assume personal liability for Mobile Modular’s obligation upon that corporation’s default. These promises to the bank were identified in the cross-indemnity agreement as part of the consideration for the signatories’ mutual promises to indemnify each other against excess loss. Once again, although defendant argues that these promises to the bank cannot constitute consideration because they did not accrue directly to his benefit (but see Union Bank of Brooklyn v Sullivan, 214 NY 332, supra), such arguments are unavailing, since plaintiffs’ separate promises to the bank clearly constituted consideration in the sense of a legal detriment incurred by the promisee.

Finally, we find no merit to defendant’s contention that summary judgment is inappropriate in this case because there remains a triable issue of fact concerning the sequence in which the various personal guarantees and the cross-indemnity agreement was executed.* * Section 5-1105 of the General Obligations Law provides that “[a] promise in writing and signed by the promisor * * * shall not be denied effect as a valid contractual obligation on the ground that consideration for the promise is past or executed, if the consideration is expressed in the writing and is proved to have been given or performed and would be a valid consideration but for the time when it was given or performed”. Thus, even if it is assumed that defendant’s promise to indemnify plaintiffs pursuant to the cross-indemnity agreement was obtained after plaintiffs executed their personal guarantees to the bank, defendant’s promise would remain enforceable, since the “past consideration”, plaintiffs’ guarantees, was clearly identified in the cross-indemnity agreement as part of the consideration for defendant’s present promise to indemnify.

For all of the foregoing reasons, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed.

      . It has been suggested that the notion of consideration as a benefit flowing to the promisee may also be traced to the concept of causa in Roman civil law (1 Corbin, Contracts, § 111, p 495; 1 Williston, Contracts [Jaeger 3d ed], § 99, pp 367-368, n 1; Lorenzen, Causa and Consideration in the Law of Contracts, 28 Yale LJ 621; Salmond, History of Contract, 3 LQ Rev 166, 178).

      . The “debt” form of action was also undesirable to many potential plaintiffs because the procedural rules associated with such actions often permitted the defendant to invoke the ancient method of trial by “wager of law” rather than trial by jury. Under the “wager of law” system, the individual accused of owing a debt could successfully defend against the accusation by solemnly swearing that he owed no debt and by supporting his oath with the sworn statements of “oath helpers” that his own oath was “clean and unperjured”. Each of the statements offered on behalf of the defendant was a mere ritualistic recitation of an established formula, and cross-examination of the defendant’s “oath helpers” was not permitted. Needless to say, this system was less than conducive to ferreting out the truth (see 1 Corbin, Contracts, § 121, pp 522-523; Field and Kaplan, Materials for a Basic Course in Civil Procedure [3d ed], pp 272, 276; Maitland, Forms of Action at Common Law [1936 ed], pp 15-19).

      . The form of action known as trespass on the case was often utilized when the defendant had negligently caused damage to a chattel entrusted to his care. In such cases, the pleader would often allege that the defendant had undertaken to act carefully (assumpsit), presumably in order to avoid the charge that he had also been at fault in entrusting his property to the defendant. In any event, it seems fairly certain that this allegation of assumpsit was the forerunner of the subsequently developed writ of assumpsit, which became the primary vehicle for recovering for misperformance or nonperformance of a contractual duty (see Field and Kaplan, Materials for a Basic Course in Civil Procedure [3d ed], p 277).

      . Among the earliest cases laid in assumpsit were cases involving a ferryman who failed in his undertaking to carry plaintiff’s horse across a river by overloading the boat and allowing the horse to drown, a surgeon who breached his promise to cure plaintiff by administering the wrong medications and a smith who bungled his undertaking to shoe plaintiff’s horse by performing incompetently and laming the horse (see 1 Williston, Contracts [Jaeger 3d ed], § 99, p 368, n 3; Ames, History of Assumpsit, 2 Harv L Rev 1).

      . One leading commentator has observed that there is a substantial discrepancy between the notion of an injury to the plaintiff in the ancient law of assumpsit and the notion of “detriment” to the promisee in modern contract law (1 Corbin, Contracts, § 122, p 526; see n 4, supra). Nevertheless, there is little doubt among scholars in the field that our contemporary theories of consideration are derived largely from the pleading rules associated with actions in assumpsit (id.).

      . Although defendant made a number of factual assertions in the affidavit submitted in support of his motion for summary judgment, he did not directly challenge the statement in the cross-indemnity agreement identifying plaintiffs’ promises to indemnify their coshareholders as the “bargained for” consideration for his reciprocal promise.

      . Defendant has also argued that summary judgment in favor of plaintiffs is improper in this case because there exist triable issues of fact concerning the amount of damages due to plaintiffs under the terms of the cross-indemnity agreement. Inasmuch as defendant failed to controvert plaintiffs’ claim for a specific sum in damages upon his initial motion for summary judgment, however, the issue defendant now raises cannot at this stage of the litigation provide an adequate ground for withholding summary judgment.


author: Chief Judge Cooke.

text:
    The People of the State of New York, Appellant, v Lisa Farrar, Respondent.
    Argued January 8, 1981;
    decided March 26, 1981

      POINTS OF COUNSEL

      Mario Merola, District Attorney (Peter D. Coddington and Alan D. Marrus of counsel), for appellant.
    In the absence of any new facts warranting a reduction of sentence, the court below erred when, as a matter of law, it unilaterally nullified the sentence portion of a plea and sentence agreement which was specifically made by the prosecutor and respondent, indorsed by the nisi prius court at the time of the plea, and carried out at the time of sentence. (People v Jones, 39 NY2d 694; People v Maldonado, 70 AD2d 308; People v Selikoff, 35 NY2d 227, 419 US 1122; Matter of Russo v New York State Bd. of Parole, 50 NY2d 69; People v Parker, 41 NY2d 21; Snyder

      v Massachusetts, 291 US 97; Matter of MacDonald v Sobel, 272 App Div 455, 297 NY 679; Matter of Cosgrove v La Mendola, 73 AD2d 810; Matter of Gribetz v Edelstein, 66 AD2d 788.)
    , Joseph T. Klempner, Michael Wittman and Sheila Klempner for respondent.
    I. The court below properly remanded the case and required the sentencing court to exercise the judicial discretion it withheld in sentencing respondent. (People v Maldonado, 70 AD2d 308; People v Selikoff, 35 NY2d 227, 419 US 1122; Santobello v New York, 404 US 257; People ex rel. Burby v Howland, 155 NY 270; Matter of Davies, 168 NY 89; Matter of La Guardia v Smith, 288 NY 1.) II. The Maldonado rule does not work to destroy the plea bargaining system. (United States v Werker, 535 F2d 198.)
   OPINION OF THE COURT

Chief Judge Cooke.

Involved on this appeal are questions concerning the power of a sentencing court to exercise its own discretion independent of a plea agreement and to impose a sentence less than that negotiated at the time of the plea.

Defendant was indicted for both felony and intentional murder, attempted murder, robbery, burglary and criminal possession of a weapon. These charges arose out of her participation in a robbery that ended with the death of a nonparticipant. Following negotiations, defendant pleaded guilty to first degree manslaughter in full satisfaction of the indictment. At the time of plea, the court recounted the agreement reached: defendant was to be sentenced to a term of 8% to 25 years unless she was adjudicated a second felony offender, in which case she would receive a sentence of 12y2 to 25 years. The court, prosecutor, defendant and her counsel all acknowledged the agreement and the court accepted the plea to the lesser offense. Defendant was later found to be a predicate felon. At sentencing, the prosecutor argued for imposition of the 12%- to 25-year sentence as agreed upon earlier. Defense counsel in turn urged the court to exercise its sentencing discretion independent of the prosecutor’s demand and, pointing to the 8% minimum proposed for other defendants, requested that defendant be sentenced as a predicate felon to a 10- to 20-year term. The Judge noted that he was troubled by the sentence proposed by the prosecutor and agreed with defense counsel that a 10- to 20-year term was more appropriate, given the lesser sentences to be meted out to the coparticipants. Nonetheless, the court considered itself bound by the original sentence agreement, stating that “after a negotiated plea has been entered and after an indication that the Court would go along with the plea * * * I feel morally and professionally bound to follow that negotiated plea.” Defendant, declining the offer to permit withdrawal of her plea, was sentenced to a 12%- to 25-year term of imprisonment.

The Appellate Division, relying on People v Maldonado (70 AD2d 308), ruled that the Judge’s failure to exercise discretion at sentencing was error, vacated the sentence and remitted the case to Supreme Court “to permit the sentencing Justice to impose the sentence that he deems to be right within the statutory limits, with due regard to the plea negotiations, but without deeming himself bound not to impose a lesser sentence than that originally agreed upon.” Leave to appeal to this court was granted to the People. We now modify only to the extent of directing that the People be given the opportunity to withdraw consent to the plea in the event a lesser sentence is to be imposed, but otherwise affirm.

Rejected at the outset is the proposition that the court, by its purported commitment to the prosecutor at the time of the plea, can be bound to impose a particular sentence. Such an approach fails to recognize the underlying principle applicable to all these situations — that the sentencing decision is a matter committed to the exercise of the court’s discretion and that it can be made only after careful consideration of all facts available at the time of sentencing.

The determination of an appropriate sentence requires the exercise of discretion after due consideration given to, among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence (see People v McConnell, 49 NY2d 340, 346; Penal Law, § 1.05, subd 5). The law and strong public policy of this State mandate that the court, detached from outside pressures often brought to bear on the prosecution and defense, make that determination. Quite simply, the court must perform the delicate balancing necessary to accommodate the public and private interests represented in the criminal process.

Contrary to the People’s argument, the court cannot be deemed to have finally exercised its discretion at the time that the plea, with the proposed sentence, is accepted. While the court legitimately may indicate that a proposed sentence is fair and acceptable, the necessary exercise of discretion cannot be fixed immutably at the time of the plea, for the decision requires information that may be unavailable then. Indeed such a view of the plea bargaining process and sentencing function was expressly disapproved in People v Selikoff (35 NY2d 227). The court there made clear that the sentencing function- rests primarily with the Judge, whose ultimate obligation is to impose an appropriate sentence and who must exercise his or her responsibility at the time of sentencing in the light of information obtained from the presentence report or other source (id., at pp 238-240). Any other rule would negate the distinctions between the court’s role in sentencing and accepting a plea and ignore the procedures designed to ensure that an appropriate sanction be imposed. Thus, a sentence negotiated prior to the plea, and in most cases prior to receipt of a presentence report, does not automatically become the sentence of the court. Just as the court must be free to impose a more severe sentence when warranted, the plea and sentence process must leave the court leeway to consider a lesser penalty when the facts and justice so require. No less can be accepted if the integrity of the criminal justice system is to be maintained.

This is not to say that negotiations concerning the particular sentence to be imposed are inappropriate. Indeed, it would be to ignore reality to deny that an integral part of the plea bargaining process is the negotiated sentence (see People v Pena, 50 NY2d 400, 412). In considering whether to permit a defendant to plead to a lesser offense, the prosecutor legitimately may consider and negotiate a penalty that he or she deems necessary to serve the interests of the People. Postindictment investigation may well convince the prosecutor that, notwithstanding a defendant’s criminal liability for the crime charged, the harsh minimum penalty on the greater offense is unwarranted in light of the then known background of the defendant or his or her role in the crime. The prosecutor, however, may consider the lower levels of the sentence range for the lesser offense similarly unacceptable as permitting the imposition of a too lenient penalty. A negotiated sentence permits a compromise that may well satisfy the law enforcement demands of the office and the ends of justice. Thus, the “sentence bargain” is a legitimate part of the plea bargaining process.

The propriety of sentence bargaining notwithstanding, neither the prosecutor nor the court may ignore that the ultimate determination of an appropriate sentence is to be made by the court. A review of the sentencing minutes in this case reveals that the Judge declined to exercise his discretion at sentencing. While stating his disagreement with a 123/2- to 25-year sentence for this defendant, the Judge nonetheless imposed that penalty under the view that he was bound by the prior commitment to the prosecutor. This failure to exercise discretion at sentencing was error. The Appellate Division thus properly remitted the case to Supreme Court for resentencing.

The Appellate Division, however, failed to recognize the prosecutor’s right to withdraw consent to the plea in the event that the sentence to be imposed is less than originally negotiated by the parties. The legislative policy of this State is to require the consent of the court and prosecutor to a plea to a lesser included offense or to less than the entire indictment (see CPL 220.10, subds 3, 4). Such a joint consent procedure prevents abuse (see People v Selikoff, 35 NY2d 227, 241, supra) and recognizes the prosecutor’s independent role and interest concerning the course the prosecution will take. Where the record shows that the prosecutor’s consent to a plea is premised on a negotiated sentence and a lesser sentence is later deemed more appropriate, the People should be given the opportunity to withdraw their consent. However justified the court’s unwillingness to impose the negotiated sentence, fairness dictates that this avenue be left open. Of course, this is not to say that the People’s application must be granted in all cases, for, among other things, prejudice to a defendant following a plea may prevent restoration to status quo ante and render vacatur of the plea inappropriate (see People v McConnell, 49 NY2d 340, supra). Absent defendant’s showing of such prejudice or other circumstances militating against vacatur, however, relief to the People would be proper.

In sum, a court must exercise its discretion at sentencing, notwithstanding that a sentence was negotiated at the time of the plea, and must be free to impose a lesser penalty if warranted. The court, however, should entertain an application by the People to withdraw consent to the plea if a sanction less severe than that negotiated is to be imposed.

Accordingly, the order of the Appellate Division should be modified in accordance with this opinion and, as so modified, affirmed.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified, etc.

       This would merely be the counterpart of defendant’s right to withdraw the plea in the event the court, in the exercise of its discretion, determines that the sentence agreed upon is inappropriate and indicates an intention to increase the severity of the punishment.


text:
    The People of the State of New York, Respondent, v Ronald Olivo, Appellant. The People of the State of New York, Respondent, v Stefan M. Gasparik, Appellant. The People of the State of New York, Respondent, v George Spatzier, Appellant.
    Argued January 15, 1981;
    decided February 19, 1981

      POINTS OF COUNSEL

      Gerald J. Callahan and John F. Middlemiss, Jr., for appellant in the first above-entitled action.
    I. The trial court erred when it charged the jury on the crime of attempted petit larceny. (People v Britto, 93 Misc 2d 151; People v Richette, 33 NY2d 42; People v Seiler, 246 NY 262; People v Mussenden, 308 NY 558; Sansone v United States, 380 US 343; People v Discala, 45 NY2d 38; People v Alamo, 34 NY2d 453.) II. The People have failed to prove fhe essential element of intent. (People v Alamo, 34 NY2d 453; People v Ashworth, 220 App Div 498; Harrison v People, 50 NY 518; People v Parrett, 90 Misc 2d 541; Day v Grand Union Co., 280 App Div 253; People v Britto, 93 Misc 2d 151.)

      Patrick Henry, District Attorney (Scott M. Karson and Maureen S. Hoerger of counsel), for respondent in the first above-entitled action.
    I. The trial court properly charged the lesser included offense of attempted petit larceny. (People v Johnson, 39 NY2d 364; People v Shuman, 37 NY2d 302; People v Asan, 22 NY2d 526; People v Mussenden, 308 NY 558; People v Malave, 21 NY2d 26; People v Russell, 266 NY 147.) II. Defendant was properly convicted of petit larceny. (People v Lefkowitz, 232 App Div 18; People v Bajan, 260 App Div 756; People v Britto, 93 Misc 2d 151; People v Alamo, 34 NY2d 453; People v Concepcion, 38 NY2d 211; People v Burnie, 26 NY2d 650; People v Jones, 58 AD2d 696.)

      Elaine T. Stogel and William E. Hellerstein for appellant in the second above-entitled action.
    I. Appellant’s conviction must be reversed and the accusatory instrument dismissed because the trial court acted without jurisdiction in trying appellant on the basis of a hearsay misdemeanor complaint without ever informing him of his right to be prosecuted by information or obtaining from him a waiver of that right. (People v Weinberg, 34 NY2d 429.) II. A customer in a department store cannot be convicted of larceny where he has removed a price tag and sensormatic device from a jacket, has made no attempt to conceal his possession of the jacket as he continues his shopping, and is apprehended while he still has opportunities to pay for the jacket. (People v Alamo, 34 NY2d 453; People v Britto, 93 Misc 2d 151.)

      Robert M. Morgenthau, District Attorney (Russell A. Bikoff and Jerrold L. Neugarten of counsel), for respondent in the second above-entitled action.
    I. The evidence was me*' Lhau legally sufficient to prove appellant was guilty of petit larceny. (People v Alamo, 34 NY2d 453; Harrison v People, 50 NY 518; People v Montanez, 41 NY2d 53; People v Britto, 93 Misc 2d 151.) II. Appellant’s claim that the absence of a signature on a supporting deposition, filed in conjunction with a complaint in Criminal Court, made the information invalid was not perserved. In any event, the supporting deposition substantially conformed to the requirements for a valid information. (People ex rel. Brown v Tighe, 146 App Div 491; People v Iannone, 45 NY2d 589; People v Fitzgerald, 45 NY2d 574; People v Scott, 3 NY2d 148; People ex rel. Siegel v Dros, 11 NY2d 167; People v Coldiron, 77 Misc 2d 102, 79 Misc 2d 338; People v Lester, 267 App Div 537; People v Rice Assoc., 185 Misc 473, 269 App Div 963; People v Rupp, 75 Misc 2d 683; People v Miller, 75 Misc 2d 1.)

      Michael W. Holland for appellant in the third above-entitled action.
    I. The People failed to prove that there was a taking or caption sufficient to constitute a trespass. (People v Frank, 176 Misc 416; People v Britto, 93 Misc 2d 151; People v Alamo, 34 NY2d 453; Day v Grand Union Co., 280 App Div 253.) II. The People failed to prove that there was a carrying away or asportation sufficient to demonstrate dominion and control over the book. (People v Parrett, 90 Misc 2d 541; People v Alamo, 34 NY2d 453.) III. The People failed to prove that defendant took the book Animo Furandi, that is, with felonious intent. (People v Guzman, 68 AD2d 58; People v Parrett, 90 Misc 2d 541; People v Anderson, 14 Johns 294.) IV. The court failed to properly marshal and summarize the evidence presented, and the theory and contentions of the defense. The court failed to adequately charge the jury with the full extent of the legal principles applicable to this case. The court failed to adequately define the legal principles presented to the jury, and to instruct the jury in the manner in which they were to apply the law to the evidence presented. The People’s summation mislead the jury with respect to the evidence presented and the law they were to apply thereto. Defendant was denied a fair trial. (People v Tunstall, 5 AD2d 338; People v Christie, 16 AD2d 598; People v Kenda, 3 AD2d 80.)

      Denis Dillon, District Attorney (Herbert H. Esrick and William C. Donnino of counsel), for respondent in the third above-entitled action.
    I. The evidence adduced was sufficient to support defendant’s guilt. (Harrison v People, 50 NY 518; People v Alamo, 34 NY2d 453; People v Cullen, 50 NY2d 168; People v Bajan, 260 App Div 756, 285 NY 808; People v Britto, 93 Misc 2d 151; People v Frank, 176 Misc 416.) II. The claimed errors in the prosecutor’s summation and the court’s charge were not preserved for review; in any event, the summation and charge were fair. (People v Arce, 42 NY2d 179; People v Robinson, 36 NY2d 224; People v Ashwal, 39 NY2d 105; People v Williamson, 40 NY 2d 1073.)
   OPINION OF THE COURT

Chief Judge Cooke.

These cases present a recurring question in this era of the self-service store which has never been resolved by this court: may a person be convicted of larceny for shoplifting if the person is caught with goods while still inside the store? For reasons outlined below, it is concluded that a larceny conviction may be sustained, in certain situations, even though the shoplifter was apprehended before leaving the store.

I

In People v Olivo, defendant was observed by a security guard in the hardware area of a department store. Initially conversing with another person, defendant began to look around furtively when his acquaintance departed. The security agent continued to observe and saw defendant assume a crouching position, take a set of wrenches and secret it in his clothes. After again looking around, defendant began walking toward an exit, passing a number of cash registers en route. When defendant did not stop to pay for the merchandise, the officer accosted him a few feet from the exit. In response to the guard’s inquiry, defendant denied having the wrenches, but as he proceeded to the security office, defendant removed the wrenches and placed them under his jacket. At trial, defendant testified that he had placed the tools under his arm and was on line at a a cashier when apprehended. The jury returned a verdict of guilty on the charge of petit larceny. The conviction was affirmed by Appellate Term.

II

In People v Gasparik, defendant was in a department store trying on a leather jacket. Two store detectives observed him tear off the price tag and remove a “sensormatic” device designed to set off an alarm if the jacket were carried through a detection machine. There was at least one such machine at the exit of each floor. Defendant placed the tag and the device in the pocket of another jacket on the merchandise rack. He took his own jacket, which he had been carrying with him, and placed it on a table. Leaving his own jacket, defendant put on the leather jacket and walked through the store, still on the same floor, by passing several cash registers. When he headed for the exit from that floor, in the direction of the main floor, he was apprehended by security personnel. At trial, defendant denied removing the price tag and the sensormatic device from the jacket, and testified that he was looking for a cashier without a long line when he was stopped. The court, sitting without a jury, convicted defendant of petit larceny. Appellate Term affirmed.

Ill

In People v Spatzier, defendant entered a bookstore on Fulton Street in Hempstead carrying an attaché case. The two co-owners of the store observed the defendant in a ceiling mirror as he browsed through the store. They watched defendant remove a book from the shelf, look up and down the aisle, and place the book in his case. He then placed the case at his feet and continued to browse. One of the owners approached defendant and accused him of stealing the book. An altercation ensued and when defendant allegedly struck the owner with the attaché case, the case opened and the book fell out. At trial, defendant denied secreting the book in his case and claimed that the owner had suddenly and unjustifiably accused him of stealing. The jury found defendant guilty of petit larceny, and the conviction was affirmed by the Appellate Term.

IV

The primary issue in each case is whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to establish the elements of larceny as defined by the Penal Law. To resolve this common question, the development of the common-law crime of larceny and its evolution into modern statutory form must be briefly traced.

Larceny at common law was defined as a trespassory taking and carrying away of the property of another with intent to steal it (e.g., La Fave & Scott, Criminal Law, § 85, at p 622; see 4 Blackstone’s Commentaries, at pp 229-250). The early common-law courts apparently viewed larceny as defending society against breach of the peace, rather than protecting individual property rights, and therefore placed heavy emphasis upon the requirement of a trespassory taking (e.g., Fletcher, Metamorphosis of Larceny, 89 Harv L Rev 469; American Law Institute, Model Panel Code [Tent Draft No. 1], art 206, app A, at p 101; La Fave & Scott, Criminal Law, § 85, at pp 622-623). Thus, a person such as a bailee who had rightfully obtained possession of property from its owner could not be guilty of larceny (e.g., Glanvill, Treatise on the Laws and Customs of the Realm of England [Hall ed, 1965], at pp 128-130 [Book 10, at pp 13-14] ; see, e.g., Carrier’s Case, YB Pasch 13 Edw IV, f 9, pi 5 [1473]). The result was that the crime of larceny was quite narrow in scope.

Gradually, the courts began to expand the reach of the offense, initially by subtle alterations in the common-law concept of possession (e.g., American Law Institute, Model Penal Code [Tent Draft No. 1], art 206, app A, p 101). Thus, for instance, it became a general rule that goods entrusted to an employee were not deemed to be in his possession, but were only considered to be in his custody, so long as he remained on the employer’s premises (e.g., 3 Holdsworth, A History of English Law [3d ed, 1923], at p 365). And, in the case of Chisser (Raym Sir T 275, 83 Eng Rep 142), it was held that a shop owner retained legal possession of merchandise being examined by a prospective customer until the actual sale was made. In these situations, the employee and the customer would not have been guilty of larceny if they had first obtained lawful possession of the property from the owner. By holding that they had not acquired possession, but merely custody, the court was able to sustain a larceny conviction.

As the reach of larceny expanded, the intent element of the crime became of increasing importance, while the requirement of a trespassory taking became less significant. As a result, the bar against convicting a person who had initially obtained lawful possession of property faded. In King v Pear (1 Leach 212,168 Eng Rep 208), for instance, a defendant who had lied about his address and ultimate destination when renting a horse was found guilty of larceny for later converting the horse. Because of the fraudulent misrepresentation, the court reasoned, the defendant had never obtained legal possession (id., see King v Semple, 1 Leach 420, 421-324, 168 Eng Rep 312, 313; 1 Hawkins, Pleas of the Crown [Leach 6th ed], 135, n 1). Thus, “larceny by trick” was born (see Hall, Theft, Law and Society [2d ed], atp 40).

Later cases went even further, often ignoring the fact that a defendant had initially obtained possession lawfully, and instead focused upon his later intent (e.g., Queen v Middleton, LR 2 Cr Cas Res 38 [1873]; Queen v Ashwell, 16 QBD 190 [1885]). The crime of larceny then encompassed, not only situations where the defendant initially obtained property by a trespassory taking, but many situations where an individual, possessing the requisite intent, exercised control over property inconsistent with the continued rights of the owner. During this evolutionary process, the purpose served by the crime of larceny obviously shifted from protecting society’s peace to general protection of property rights (Fletcher, Metamorphosis of Larceny, 89 Harv L Rev 469, 519-520, La Fave & Scott, Criminal Law, § 84, at pp 618-619).

Modern penal statutes generally have incorporated these developments under a unified definition of larceny (see, e.g., American Law Institute, Model Penal Code [Tent Draft No. 1], § 206.1 [theft is appropriation of property of another, which includes unauthorized exercise of control]). Case law, too, now tends to focus upon the actor’s intent and the exercise of dominion and control over the property (see, e.g., People v Alamo, 34 NY2d 453; People v Baker, 365 Ill 323; People v Britto, 93 Misc 2d 151, 154). Indeed, this court has recognized, in construing the New York Penal Law, that the uancient common-law concepts of larceny” no longer strictly apply (People v Alamo, supra, at p 459 [emphasis added]).

This evolution is particularly relevant to thefts occurring in modern self-service stores. In stores of that type, customers are impliedly invited to examine, try on, and carry about the merchandise on display. Thus in a sense, the owner has consented to the customer’s possession of the goods for a limited purpose (see, e.g., Day v Grand Union Co., 280 App Div 253, 254-255; Lasky v Economy Grocery Stores, 319 Mass 224; Groomes v United States, 155 A2d 73 [DC]). That the owner has consented to that possession does not, however, preclude a conviction for larceny. If the customer exercises dominion and control wholly inconsistent with the continued rights of the owner, and the other elements of the crime are present, a larceny has occurred. Such conduct on the part of a customer satisfies the “taking” element of the crime.

It is this element that forms the core of the controversy in these cases. The defendants argue, in essence, that the crime is not established, as a matter of law, unless there is evidence that the customer departed the shop without paying for the merchandise.

Although this court has not addressed the issue, case law from other jurisdictions seems unanimous in holding that a shoplifter need not leave the store to be guilty of larceny (e.g., State v Grant, 135 Vt 222; Groomes v United States, 155 A2d 73 [DC], supra; People v Baker, 365 Ill 328; People v Bradovich, 305 Mich 329; accord People v Britto, 93 Misc 2d 151, supra). This is because a shopper may treat merchandise in a manner inconsistent with the owner’s continued rights — and in a manner not in accord with that of a prospective purchaser — without actually walking out of the store. Indeed, depending upon the circumstances of each case, a variety of conduct may be sufficient to allow the trier of fact to find a taking. It would be well-nigh impossible, and unwise, to attempt to delineate all the situations which would establish a taking. But it is possible to identify some of the factors used in determining whether the evidence is sufficient to be submitted to the fact finder.

In many cases, it will be particularly relevant that defendant concealed the goods under clothing or in a container (see, e.g., People v Baker, 365 Ill 328, supra; People v Bradovich, 305 Mich 329, supra). Such conduct is not generally expected in a self-service store and may in a proper case be deemed an exercise of dominion and control inconsistent with the store’s continued rights. Other furtive or unusual behavior on the part of the defendant should also be weighed. Thus, if the defendant surveys the area while secreting the merchandise or abandons his or her own property in exchange for the concealed goods, this may evince larcenous rather than innocent behavior. Relevant too is the customer’s proximity to or movement towards one of the store’s exits. Certainly it is highly probative of guilt that the customer was in possession of secreted goods just a few short steps from the door or moving in that direction. Finally, possession of a known shoplifting device actually used to conceal merchandise, such as a specially designed outer garment or a false bottomed carrying case, would be all but decisive.

Of course, in a particular case, any one or any combination of these factors may take on special significance. And there may be other considerations, not now identified, which should be examined. So long as it bears upon the principal issue — whether the shopper exercised control wholly inconsistent with the owner’s continued rights — any attending circumstance is relevant and may be taken into account.

V

Under these principles, there was ample evidence in each case to raise a factual question as to the defendants’ guilt. In People v Olivo, defendant not only concealed goods in his clothing, but he did so in a particularly suspicious manner. And, when defendant was stopped, he was moving towards the door, just three feet short of exiting the store. It cannot be said as a matter of law that these circumstances fail to establish a taking.

In People v Gasparik, defendant removed the price tag and sensor device from a jacket, abandoned his own garment, put the jacket on and ultimately headed for the main floor of the store. Removal of the price tag and sensor device, and careful concealment of those items, is highly unusual and suspicious conduct for a shopper. Coupled with defendant’s abandonment of his own coat and his attempt to leave the floor, those factors were sufficient to make out a prima facie case of a taking.

In People v Spatzier, defendant concealed a book in an attaché case. Unaware that he was being observed in an overhead mirror, defendant looked furtively up and down the aisle before secreting the book. In these circumstances, given the manner in which defendant concealed the book and his suspicious behavior, the evidence was not insufficient as a matter of law.

VI

A few brief comments are necessary to dispose of other contentions raised by the defendants. As to defendant Olivo, it is difficult to see how he was prejudiced by the charge of attempted larceny (cf. People v Richette, 33 NY2d 42, 45-46). Resolution of defendant Gasparik’s claim that the misdemeanor complaint was never converted into an information, raised for the first time on this appeal, turns on events occurring at the arraignment. The minutes of the arraignment were not included in the record on the appeal to the Appellate Term. Since it was defendant’s obligation to prepare a proper record, and since defense counsel has affirmatively hindered the prosecutor’s recent attempts to remedy the situation, we decline to take cognizance of defendant’s contention. Finally, none of defendant Spatzier’s additional points warrant reversal.

VII

In sum, in view of the modern definition of the crime of larceny, and its purpose of protecting individual property rights, a taking of property in the self-service store context can be established by evidence that a customer exercised control over merchandise wholly inconsistent with the store’s continued rights. Quite simply, a customer who crosses the line between the limited right he or she has to deal with merchandise and the store owner’s rights may be subject to prosecution for larceny. Such a rule should foster the legitimate interests and continued operation of self-service shops, a convenience which most members of the society enjoy.

Accordingly, in each case, the order of the Appellate Term should be affirmed.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

In each case: Order affirmed.

      . One popular explanation for the limited nature of larceny is the “unwillingness on the part of the judges to enlarge the limits of a capital offense” (Commonwealth v Ryan, 155 Mass 523, 527; Hall, Theft, Law and Society [2d ed], at p 118 et seq.). The accuracy of this view is subject to some doubt (see Fletcher, Metamorphosis of Larceny, 89 Harv L Rev 469, 483-484, n 64).

      . In 1529, a statute was passed subjecting employees to the law of larceny as to all valuable property entrusted to them by their employers (21 Hen VIII, ch 7).

      . Parliament also played a role in this development. Thus, for example, in 1857 a statute extended larceny to all conversions by bailees (20 & 21 Viet, ch 54).

      . One commentator has argued that the concept of possessiorial immunity— i.e., that one who obtains possession of property by delivery from the owner cannot be guilty of larceny — stems from a general reluctance of the early common law to criminalize acts arising out of private relationships (Fletcher, Metamorphosis of Larceny, 89 Harv L Rev 469, 472-476). Thus, although an owner deprived of property by a bailee could seek a civil remedy in detinue and later trover (Maitland, Equity and the Forms of Action at Common Law, at pp 356-357, 365), the harm was deemed private and not a matter for societal intervention. Over time, the public-private dichotomy waned and the criminal law increasingly was viewed as an instrument for protecting certain interests and controlling social behavior (Fletcher, at pp 502-504). As a concomitant development, the criminal law changed its main focus from the objective behavior of the defendant to his subjective intent (id., at pp 498-518).

      . Section 155.05 of the Penal Law defines larceny: “1. A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains, or withholds such property from an owner thereof. 2. Larceny includes a wrongful taking, obtaining or withholding of another’s property, with the intent prescribed in subdivision one of this section, committed in any of the following ways: (a) By conduct heretofore defined or known as common law larceny by trespassory taking, common law larceny by trick, embezzlement, or obtaining property by false pretenses.”

      . Also required, of course, is the intent prescribed by subdivision 1 of section 155.05 of the Penal Law, and some movement when property other than an automobile is involved (see People v Alamo, 34 NY2d 453, 458-460, supra). As a practical matter in shoplifting cases the same evidence which proves the taking will usually involve movement.
      The movement, or asportation requirement has traditionally been satisfied by a slight moving of the property (see Harrison v People, 50 NY 518). This accords with the purpose of the asportation element which is to show that the thief had indeed gained possession and control of the property (People v Alamo, supra, at pp 458, 460; see Harrison v People, supra).

      . In analyzing the proof to determine legal sufficiency, the evidence must be viewed in the light most favorable to the prosecution (e.g., People v Churchill, 47 NY2d 151, 155; People v Licitra, 47 NY2d 554, 559).

      . As discussed, the same evidence which establishes dominion and control in these circumstances will often establish movement of the property. And, the requisite intent generally may be inferred from all the surrounding circumstances. It would be the rare case indeed in which the evidence establishes all the other elements of the crime but would be insufficient to give rise to an inference of intent (cf. People v Licitra, 47 NY2d 554, 558-559).