Heublein, Inc. v. R. H. Macy & Co.

25 A.D.2d 825, 269 N.Y.S.2d 819, 1966 Trade Cas. (CCH) 71,773, 1966 N.Y. App. Div. LEXIS 4287

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 1966
• Status: Published

Opinions

Order, entered January 24, 1966, modified, on the law, on the facts, and in the exercise of discretion, to strike the last decretal paragraph thereof providing that defendant may “ be relieved of the injunction * * * upon the failure of plaintiff to revise appropriately its schedule of fixed retail prices within a reasonable period of time”; and order otherwise affirmed, without costs and disbursements to any party. The discretion of the court was properly exercised to grant a temporary injunction to enforce plaintiff’s fair-trade law prices. (National Distillers & Chem. Corp. v. Macy & Co., 23 A D 2d 51; National Distillers Corp. v. Seyopp Corp., 24 A D 2d 426, affd. 17 N Y 2d 12; Fleischmann Distilling Corp. v. Macy & Co., 24 A D 2d 977.) In amending the Alcoholic Beverage Control Law in 1964, including a repeal of section 101-e of that law, the Legislature had before it the recommendation of the Moreland Act Commission. In its recommendation for repeal of section 101-e, the commission expressly declared that “it still will be possible for the distillers, like manufacturers of other branded products, to make private resale price maintenance arrangements under the Feld-Crawford Act.” (Moreland Act Commission on the Alcoholic Beverage Control Law, Report and Recommendations No. 3, Mandatory Resale Price Maintenance, Jan. 21, 1964, p. 30.) It was stated in National Distillers Corp. v. Seyopp Corp. (supra, p. 16) that “the Feld-Crawford Fair Trade Law is in full effect in this State as to alcoholic liquors ”. The United States Supreme Court, in its recent- decision in Seagram & Sons v. Hostetter (384 U. S. 35, 50), expressly noted that “the state fair trade statute, which permits private resale price maintenance agreements on sales to consumers, appears to have emerged unscathed by the enactment of Chapter 531 ” [of Laws of 1964]. The Legislature of this State, however, has not seen fit to enact legislation exempting retail liquor sales from the provisions of the Feld-Crawford Fair Trade Law and, under the circumstances here and in view of the repeated decisions in this Department, including those rendered after the 1964 amendments were upheld by the Court of Appeals, the injunction was properly issued to enforce plaintiff’s fair-trade prices. There was no proper basis at this time for a determination that the judicial enforcement of the plaintiff’s fixed retail prices should be withheld on some future date if plaintiff failed to revise its schedule of retail prices in alleged compliance with the 1964 amendments to the Alcoholic Beverage Control Law. (See National Distillers Corp. v. Seyopp Corp., 17 N Y 2d 12, supra.) Independent of any reservation or fixing of conditions in the temporary injunction order, the power is expressly conferred upon the court to vacate or modify the order upon a change of circumstances (CPLR 6314), including action, if -any, taken pursuant to or in implementation of the price regulatory provisions of the 1964 amendments to the Alcoholic Beverage Control Law. (See Seagram v. Hostetter, supra.) Any application to vacate or modify the order should be considered and determined in light of all the circumstances then existing and after full opportunity of the parties to be heard thereon, and we conclude that it was improper now to particularize conditions which could have the effect of foreclosing or improperly influencing the future exercise of the court’s discretion. In the meantime, the parties should press for an early trial.

Concur — Rabin, J. P., McNally and Eager, JJ.;