24 A.D.2d 977 | N.Y. App. Div. | 1965
Dissenting Opinion
I dissent and vote to affirm. The Fleischmann Distilling Corporation (Fleischmann) appeals from an order entered October 22, 1965 which denied its motion for a temporary injunction. McKesson & Robbins, Inc. (McKesson) appeals from a similar order entered November 23, 1965 denying its motion for a temporary injunction. Since the questions involved are common, the appeals will be discussed together.
The action in each case is for a permanent injunction and damages premised upon violations by defendant of the Fair Trade Law (General Business Law, §§ 369-a-369-e, more particularly § 369-b). Each plaintiff moved for an injunction pendente lite. In denying the applications Special Term in each instance referred to the “post-off” practices (quantity discounts to retailers, not consumers) engaged in or permitted by each plaintiff, and in the McKesson case the court referred also to laches. It was noted that defendant consented to an early trial. The court in its reference to laches in respect to McKesson apparently premised its observation upon the fact that it was not until a period between July 26, 1965 and August 13, 1965 that McKesson took advantage of the Fair Trade Law by sending notices of its contracts and of its resale prices to all retailers including defendant. National Distillers & Chem. Co. v. Macy & Co. (23 A D 2d 51) which did not reach the Court of Appeals, considered and rejected the contention of “post-off” and laches as sufficient to bar the granting of a temporary injunction. It is recognized also that under C'PLR 6301 the prospect of irreparable harm need not always be shown in order to warrant the granting of a preliminary injunction. Section 369-b of the General Business Law, provides that “Willfully and knowingly advertising, offering for sale or selling any commodity at less than the price stipulated in any contract entered into pursuant to the provision of section three hundred sixty-nine-a * * * is unfair competition and is actionable”. Under that language if defendant is selling at less than the price stipulated it is undoubtedly guilty of unfair competition unless other provisions of existing law render the issue debatable. Under section 101-b of the Alcoholic Beverage Control Law (L. 1964, eh. 531) unlawful discriminations in price, time discounts for payments or discounts on quantity are prohibited. It is required that price schedules be filed with the State Liquor Authority as well as that certain affirmations with respect to bottle and case prices he filed. In the absence of the required affirmation any schedule filed with respect to any item of liquor is deemed invalid. The specific limitation upon one licensed to sell liquor at retail for off-premises consumption is that he shall not make retail sales at less than cost unless written permission is first obtained from the Authority. (Alcoholic
Eager and iSteuer, JJ., concur in decision; Botein, P. J., concurs in result on constraint of National Distillers & Chem. Co. v. Macy & Co. (23 A D 2d 51); Stevens, J., dissents in opinion.
Orders reversed, etc.
Lead Opinion
Appeals from orders of the Supreme Court at Special Term, entered October 22, 1965 and November 23, 1965, in New York County, which denied motions by plaintiffs for orders granting temporary injunctions against the defendant in each action.
Orders entered respectively on October 22, 1965 and November 23, 1965, reversed, on the law, the facts and in the exercise of discretion, with $30 costs and disbursements to the appellants, and the motions for a temporary injunction granted. The issue presented on these appeals cannot be distinguished from that presented in National Distillers & Chem. Co. v. Macy & Co. (23 A D 2d 51). (See, also, Fischel & Co. v. Macy & Co. (N. Y. L. J., Nov. 17, 1965, p. 17, col. 6.) Settle order on notice.
