28 A.D.2d 846 | N.Y. App. Div. | 1967
No opinion. Christ, Acting P. J., Rabin, Munder and Nolan, JJ., concur; Benjamin, J., dissents and votes to reverse the judgment and to deny plaintiff’s motion for summary judgment, with the following memorandum: I think there is a triable issue as to whether the rule of the Board of Directors of plaintiff co-operative housing corporation against dogs being kept in the premises is being enforced in a consciously discriminatory manner by applying it to defendant while not applying it to seven other tenants, including two officers of the corporation. If defendant can so establish, he would seem to have good defenses (a) on constitutional grounds of due process and equal protection of the laws (U. S. Const, 14th Amdt.; N. Y. Const., art. I, § 11; cf. People v. Friedman, 302 N. Y. 75, 81); (b) on the equity principle that a plaintiff must come into court with clean hands; and (c) on a principle analogous to the one applied in the Fair Trade Act area, that enforcement of a Fair Trade agreement is barred by a showing that it was abandoned by the manufacturer, or that the manufacturer “is using it inequitably, to favor some retailers against others ” (cf. National Distillers & Chem. Corp. v. Macy & Co., 23 AD 2d 51).
