242 A.D. 658 | N.Y. App. Div. | 1934
Order reversed on the law and in the exercise of discretion, with ten dollars costs and disbursements, and the motion for a temporary injunction granted, with ten dollars costs, on the ground that the acts of the defendant are violative of law and of the provisions of the Code of Fair Competition for the Retail Jewelry Trade, as the defendant is, in fact, selling jewelry at retail under the guise of an auction sale. If defendant has a legitimate business in selling general merchandise at public auction, its activities will not be greatly restrained or hampered by forbidding it to engage in the retail jewelry business in the manner that is disclosed by the record. The plaintiff should bring the action to trial promptly so that it may be determined whether or not the defendant is, in fact, as now appears to be the case, violating the code above mentioned. If, through any fault of plaintiff, the case is not promptly moved for trial, the defendant has leave to move to vacate the temporary injunction. Young, Hagarty, Scudder and Davis, JJ., concur; Lazansky, P. J., dissents on the ground that there are questions of fact and law which should be determined on a trial and not upon affidavits.
