time, directly or indirectly, divert, take away, or attempt to divert or take away, any of the customers or patronage of the employer, was sustained, although the court said that the validity of such a contract was doubtful if viewed from the standpoint of its terms alone, because the employee was restricted to a period of time involving six months, when circumstances might arise that would sever the relationship in one month or less. This fact gave the contract the complexion of being unreasonable, even though its restriction covered specific territory and was limited as to time; however, inasmuch as the record disclosed that the relationship under the contract between the parties extended over a period of some fourteen months, this fact injected an element into the case which compelled the court to consider the equities in this respect, as they appeared from the actual record, and not solely from the terms of the contract itself. The fact that the employer acted in reliance upon the employee's promise not to engage in a competing business furnishes a consideration for the agreement, and precludes the claim that it was unilateral. The promise to employ the defendant is sufficient consideration for his promise not to engage in a competing business. Spaulding v. Mayo (1923) 81 N. H. 85, 122 Atl. 899. So, where the employee signed a restrictive covenant after his employment had commenced, but in order to prevent being discharged, there was a sufficient consideration to entitle the employer to restrain the breach of the covenant. Bettinger v. North Ft. Worth Ice Co. (1925) Tex. Civ. App. —, 278 S. W. 466. In People's Cleaning & Dyeing Co. v. Share (1926) 168 Minn. 474, 210 N. W. 397, the court sustained the validity of a restrictive covenant made as a part of a contract for the sale of shares of stock in the corporation in whose favor the covenant was made, by which the seller, who up to about that time had been an employee of the corporation, agreed not to compete with the corporation in its business of cleaning and dyeing, within the city of Minneapolis, for a period of six years. The fact that the stock was worth the full amount paid by the buyer without this covenant, and that the contract of sale provided that, before any stockholder should sell his stock, he should offer it for sale to the corporation, was held not to render the consideration for the agreement so insufficient that injunctive relief would be denied. In Bettinger v. North Ft. Worth Ice Co. (Tex.) supra, where the defense was made that a contract containing a restrictive covenant was unilateral so far as concerned this covenant, one provision of the contract permitted either party to terminate it upon fifteen days' written notice, but, it appearing that the defendant had worked under the contract for upwards of a year, the court said that he could not successfully plead a want of consideration, or unilateralness, in a contract which he had performed in whole or in part. c. Lack of mutuality of obligation. No later decisions herein. For earlier cases, see annotations in 9 A.L.R. 1480, and 20 A.L.R. 869. See also Clark Paper & Mfg. Co. v. Stenacher, referred to in annotation in 29 A.L.R. 1331, and reported in that volume, beginning at page 1325. V. Effect of provision for liquidated damages or penalty. No later decisions herein. For earlier cases, see annotations in 9 A.L.R. 1481, and 20 A.L.R. 870. VI. Injunctive relief as affected by comparison of injury to the parties. (Supplementing annotation in 9 A.L.R. 1482.) The nature of the employment may be such as to raise a presumption that irreparable damage will be done the employer by a breach by the employee of his restrictive covenant not to engage in a competing business. GRANGER V. CRAVEN (reported herewith) ante, 1356. Considering the question of injunc tive relief, it is pointed out in Spaulding v. Mayo (1923) 81 N. H. 85, 122 Atl. 899: "There is no rule of law, written or unwritten, except the rule of reason, which delimits the situation which must exist to authorize the court to enjoin one from doing acts he has agreed not to do. The test, therefore, which should be applied to determine whether the court erred when it enjoined the defendant, is to inquire whether, everything considered, enjoining him when the court did was the reasonable thing to do; that is, considering the relative situation of the parties, their rights, contractual and otherwise, and the duties each owed the other, the loss the defendant will sustain if he is enjoined as compared with the loss the plaintiff will sustain if the injunction is denied, together with all the other facts relevant to the reasonable thing to do in that situation. The only question, therefore, raised by the defendant's exception, in so far as his contention that the injunction is unduly oppressive or that it amounts to a penalty on him rather than protection for the plaintiff, is whether there is any evidence to sustain the court's finding that the reasonable thing to do was to enjoin the defendant. The issue raised by this inquiry is obviously an issue of fact, and, as the evidence has not been transferred, the defendant takes nothing by his exception in SO far as this contention is concerned." VII. Effect of infancy of employee. No later decisions herein. For earlier cases, see annotation in 9 A.L.R. 1483. A. G. S. (245 N. Y. 340, 157 N. E. 260.) against loss through forgery construction. A bank which honors checks drawn in his assumed name by one who assumed the name of another for the purpose of obtaining credit for checks drawn to such other's order, and whose indorsement thereof he forges, is not entitled to indemnity under a policy insuring it against loss through payment of a check upon which there has been forged the signature of a depositor, since the forgery is that of the signature of one not a depositor. [See annotation on this question beginning on page 1379.] APPEAL by plaintiff from a judgment of the Appellate Division of the Supreme Court, First Department, affirming a judgment of the Trial Term, Part III., for New York County (Walsh, J.) in defendant's favor in an action brought to recover under a policy insuring against forgery. Affirmed. The facts are stated in the opinion of the court. The account which was opened by the forger in the name of John Hogan, with checks belonging to and intended for John Hogan, was the account of John Hogan, who became the bank's depositor. Palm v. Watt, 7 Hun, 317; Graves v. American Exch. Bank, 17 N. Y. 205; Van Alen v. American Nat. Bank, 52 N. Y. 1; Viets v. Union Nat. Bank, 101 N. Y. 563, 54 Am. Rep. 743, 5 N. E. 457; 1 Williston, Contr. § 3; 6 R. C. L. 588; Walsh v. National Broadway Bank, 11 Misc. 249, 32 N. Y. Supp. 734; National Exch. Bank v. Wilder, 34 Minn. 149, 24 N. W. 699; Kimball v. Norton, 59 N. H. 1, 47 Am. Rep. 171; Murphy v. Pacific Bank, 130 Cal. 542, 62 Pac. 1059; State Sav. Bank v. Foster, 118 Mich. 268, 42 L.R.A. 404, 76 N. W. 499; Catlin v. Savings Bank, 7 Conn. 487; Wilkes v. Arthur, 91 S. C. 163, 74 S. E. 361; Wright v. Holmes, 100 Me. 508, 3 L.R.A. (N.S.) 769, 62 Atl. 507, 4 Ann. Cas. 583. Mr. Albert E. Hart, with Mr. Thomas E. White, for respondent: The man who personally went to the appellant's bank, opened the account, signed the specimen signature cards, and who, by physical appearance and handwriting, became known to the bank, was its depositor within the meaning of the insurance policy. H. R. & C. Co. v. Smith, 212 App. Div. 173, 208 N. Y. Supp. 396; Re Snook, 2 Hilt. 566; Smith v. United States Casualty Co. 197 N. Y. 420, 26 L.R.A. (N.S.) 1167, 90 N. E. 947, 18 Ann. Cas. 701; Gray v. Black, Tex. Civ. App., 267 S. W. 291; Allen v. German American Ins. Co. 123 N. Y. 6, 25 N. E. 309; Van Vechten v. American Eagle F. Ins. Co. 239 N. Y. 303, 38 A.L.R. 1115, 146 N. E. 432; Kean v. National Surety Co. 241 N. Y. 252, 149 N. E. 849. Each check deposited in the account being indorsed, and each check drawn against the account being signed "John Hogan" by the hand of Palmer, the depositor of the bank, there was no forgery of the signature of a depositor, either under insuring clause "A" or insuring clause "E" of the policy. Smith v. United States Casualty Co. 197 N. Y. 420, 26 L.R.A. (N.S.) 1167, 90 N. E. 947, 18 Ann. Cas. 701; H. R. & C. Co. v. Smith, supra. which there shall have been forged, as the drawer, maker or acceptor thereof, the signature of a depositor, and/or "Through the cashing by the insured bank, after the date hereof, or through the extension, by the insured bank, after the date hereof, of credit upon the faith, "E. Of any check or draft drawn upon any bank, which shall bear the forged signature of any depositor of the insured bank as indorser." One Harry Palmer opened a deposit account with the plaintiff under the name of John Hogan. In some way he had obtained possession of checks drawn by the Western Union Telegraph Company to the order of one John Hogan, a person other than himself. These checks he deposited with the plaintiff from time to time, and later drew out the proceeds. Plaintiff was compelled thereafter to refund the amount of the checks to the true owner. now sues the defendant surety company for indemnity in accordance with the bond. It Indemnity is due if Palmer in signing the name "John Hogan" to the checks forged the signature of a depositor. Plainly Insurance -construction. he did not. The sig- against loss nature of the depos- through forgery itor was genuine. It was the very signature that Palmer, alias Hogan, had written on the signature card, and that the bank had agreed to honor. What was forged was the signature of some one not the depositor. The plaintiff in opening the account had no thought of contracting Cardozo, Ch. J., delivered the with any one except the man who opinion of the court: stood before it. The fact that for the purpose of becoming a depositor he assumed a fictitious name did not alter his identity. Phelps v. Mc973, 115 N. E. 441; Strang v. WestQuade, 220 N. Y. 232, L.R.A.1918B, chester County Nat. Bank, 235 N. Y. 68, 70, 71, 138 N. E. 739. John Hogan, the rightful owner of the checks, did not become a depositor in the bank within the meaning of this bond by force of the conversion (245 N. Y. 368, 157 N. E. 269.) Insurance, § 861 against forged check construction. 1. A check drawn by one upon an overdrawn account which he has opened in bank under a fictitious name to his own order, and deposited in his own name as a basis for credit in another bank which honors his drafts against the credit, is a forgery within the meaning of a policy insuring the bank against any loss through the payment of forged or raised checks, or the establishment of credit to any customer on the faith of such checks. [See annotation on this question beginning on page 1379.] APPEAL by plaintiff from an order of the Appellate Division of the Supreme Court, First Department, reversing a determination of the Appellate Term which affirmed a judgment of the Municipal Court of the City of New York (Genung, J.) in favor of plaintiff in an action on a banker's blanket bond to recover for loss sustained through payment of forged checks. Reversed. The facts are stated in the opinion of the court. The checks upon the faith of which the plaintiff established a credit to "George D. Wagner" were forged checks within the popular acceptance of the terms, the definitions of common law, and the meaning and intent of the defendant's bond. People v. Filkin, 83 App. Div. 589, 82 N. Y. Supp. 15, affirmed in 176 N. Y. 548, 68 N. E. 1120; 4 Bl. Com. 247; Marden v. Dorthy, 160 N. Y. 39, 46 L.R.A. 694, 54 N. E. 726; People v. Shanley, 132 App. Div. 821, 117 N. Y. Supp. 845; Re Cross (D. C.) 43 Fed. 520; People v. Cady, 6 Hill, 491; Com. v. Costello, 120 Mass. 370; Rex v. Francis, Russ. & R. C. C. 209, 168 Eng. Reprint, 764; State v. Wheeler, 20 Or. 192, 10 L.R.A. 779, 23 Am. St. Rep. 119, 25 Pac. 394; Brown v. People, 8 Hun, 562, affirmed in 72 N. Y. 571, 28 Am. Rep. 183; United States v. Turner, 7 Pet. 132, 8 L. ed. 633; Harris v. State, 19 Ala. App. 484, 98 So. 316; Maloney v. State, 91 Ark. 485, 134 Am. St. Rep. 83, 121 S. W. 728, 18 Ann. Cas. 480; Hocher v. State, 34 Tex. Crim. Rep. 359, 53 Am. St. Rep. 716, 30 S. W. 783; Brewer v. State, 32 Tex. Crim. Rep. 74, 40 Am. St. Rep. 760, 22 S. W. 41; Hanks v. State, Tex. Crim. Rep. 54 S. W. 587. Even if the definition of forgery in the Pena! Law be applied to the clause in the defendant's bond sued upon, the facts herein make out a complete case of statutory forgery. National Surety Co. v. National City Bank, 184 App. Div. 771, 172 N. Y. Supp. 413; People v. Browne, 118 App. Div. 793, 103 N. Y. Supp. 903, affirmed in 189 N. Y. 528, 82 N. E. 1130; People v. Warner, 104 Mich. 337, 62 N. W. 405; State v. Wheeler, 20 Or. 192, 10 L.R.A. 779, 23 Am. St. Rep. 119, 25 Pac. 394; People v. Jones, 106 N. Y. 523, 13 N. E. 93; Shipman v. Bank of State, 126 N. Y. 318, 12 L.R.A. 791, 22 Am. St. Rep. 821, 27 N. E. 371; Brown v. People, 8 Hun, 562, affirmed in 72 N. Y. 571, 28 Am. Rep. 183. Mr. Sidney J. Loeb, with Messrs. Prince & Loeb, for respondent: The checks which were deposited with the plaintiff were not forged, and therefore gave rise to no liability on defendant's bond, which applied only to forgeries. Hartford v. Greenwich Bank, 157 App. Div. 448, 142 N. Y. Supp. 387, affirmed in 215 N. Y. 726, 109 N. E. 1077; Holub-Dusha Co. v. Germania Bank, 164 App. Div. 279, 149 N. Y. Supp. 775; National Surety Co. v. National City Bank, 184 App. Div. 771, 172 N. Y. Supp. 413; Strang V. Westchester County Nat. Bank, 235 N. Y. 68, 138 N. E. 739; De Witt v. Walton, 9 N. Y. 574; David v. Williamsburgh City F. Ins. Co. 83 N. Y. 265, 38 Am. Rep. 418; Anderson v. Dundee State Bank, 66 Hun, 613, 21 N. Y. Supp. 925; Graves v. American Exch. Bank, 17 N. Y. 205; Rosenthal v. American Bonding Co. 207 N. Y. 162, 46 L.R.A. (N.S.) 561, 100 N. E. 716. tiff bank a policy of insurance against "any loss through the payment, whether received over the counter or through the clearing house, or by mail, of forged or raised checks or (genuine) checks bearing forged indorsements or the establishment of any credit to any customer on the faith of such checks." Thereafter one George D. Wagner opened an account with the plaintiff bank. On the 11th day of February he had a credit balance of $350. On that day he presented to the plaintiff bank two checks for $400 each. They were drawn to his order and were indorsed by him. One, drawn on the Chatham & Phenix Bank, purported to be made by one Charles G. Weber; the second, drawn on the Yorkville Bank, purported to be made by one Charles F. Viets. In fact these checks were made and signed by George D. Wagner, to whose order they were drawn. The plaintiff bank believed these checks to be genuine and established a credit for the amount of the said checks in favor of George D. Wagner, and George D. Wagner thereafter drew from his account the sum of $800. The checks upon the faith of which the credit was established were duly presented to the banks upon which they were drawn. The check drawn on the Chatham & Phenix National Bank was returned because the drawer had no account in that bank; the other check was returned unpaid because the drawer had not sufficient funds in his account to meet the check. George D. Wagner has refused to repay to the plaintiff bank the money he drew under the credit established on the faith of the two unpaid checks. For the consequent loss, the plaintiff claims in this action indemnity under the defendant's policy of insur ance. There is no dispute between the parties as to the circumstances under which the loss to the plaintiff occurred. Many of the facts were Lehman, J., delivered the opinion expressly stipulated. The sole quesof the court: The defendant issued to the plain tion is whether the checks upon the faith of which credit in favor of the |