c30:Nos. 18737, 18738

FREEDMAN, Circuit Judge
(dissenting).
I dissent from the affirmance of the preliminary injunction because: (1) contrary to the function of a preliminary injunction, it will afford Mixco all the equitable relief it might succeed in obtaining in a final decree; and (2) it is inequitable in the circumstances which surround the parties.
1. The one-year restrictive covenant has only three and one-half months to run. The trial and final decision of the case within that short time is unlikely, indeed inconceivable. Mixco, therefore, will now receive what in fact is complete and final equitable relief, but in the guise of a preliminary injunction whose main function is to preserve the status qup pendente lite.
■ 2. Even if we assume the validity of •the restrictive covenant and accept the claim that it was violated, we still must weigh what harm to Mixco will be averted by the continuance of the preliminary injunction for the short period of three and one-half months against the hardship it will impose on Leamy.
What future harm to Mixco will be prevented by the preliminary injunction?
The majority agrees that Leamy’s services are not “special, unique or extraordinary” under the governing New York law or of such a character as to make Leamy’s replacement unduly difficult. The majority asserts, however, that it is necessary to protect Mixco’s trade secrets. The label is impressive, but the content of the so-called trade secrets is obscure. As the majority points out, no special trade secret meriting protection was produced at the hearing. What the majority seeks to protect, however, are those secrets which Leamy would divulge by using his training in the performance of his work. The injunction, therefore, will forbid Leamy from working for three and one-half months in the future in order to prevent him from using his knowledge. But Leamy has already been engaged in precisely such work for the nine months of his employment with Philadelphia Gear prior to the entry of the preliminary injunction and for the additional nine months which have gone by since the preliminary injunction was stayed. The impact upon Mixco of Lea-my’s continuance in his employment for the short future period of three and one-half months is trifling when compared with the 18 months in which Leamy has already employed the same so-called trade secrets.
I therefore see little, if anything, which Mixco could gain now from a preliminary injunction to run for three and one-half months.
What burden will the preliminary injunction impose on Leamy?
Leamy is an inconspicuous employee enmeshed in what is fundamentally a competitive struggle between the two largest corporations in the mixing equipment business. He has no business of his own. The continuance of the preliminary injunction now will cast him adrift from his job with no assurance of reemployment when the three and one-half months have elapsed. It is not necessary to throw Leamy out of a job in order to afford Mixco relief or even to discourage others in the position of Leamy from violating their restrictive covenants. Any injury which Mixco may have suffered is redressable in the form of damages from both defendants. Mix-co also seeks such relief in its complaint.
Weighing, as equity must, the respective elements of advantage and hardship, it seems to me that a court of equity should not stretch out its strong arm to require Leamy to give up his job by a preliminary injunction restraining him from continuing for three and one-half months the same work he has already been doing for 18 months because of what is said to be a violation of a one-year restrictive covenant.
I therefore would terminate the preliminary injunction and remand the case for hearing and decision of the claim for damages.
. Warner Bros. Pictures v. Gittone, 110 F.2d 292, 293 (3 Cir. 1940).

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