Victor Fischel & Co. v. R. H. Macy & Co.

Appellate Division of the Supreme Court of New York

Victor Fischel & Co. v. R. H. Macy & Co.

26 A.D.2d 539, 271 N.Y.S.2d 510, 1966 Trade Cas. (CCH) 71,857, 1966 N.Y. App. Div. LEXIS 3855

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 28, 1966

StatusPublished

This text of 26 A.D.2d 539 (Victor Fischel & Co. v. R. H. Macy & Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Victor Fischel & Co. v. R. H. Macy & Co., 26 A.D.2d 539, 271 N.Y.S.2d 510, 1966 Trade Cas. (CCH) 71,857, 1966 N.Y. App. Div. LEXIS 3855 (N.Y. Ct. App. 1966).

Pincite

Opinion

Judgment unanimously modified, on the law and on the facts, to the extent of deleting the provision awarding damages to plaintiff, and otherwise affirmed, with $50 costs and disbursements to plaintiff. While the record sustains the injunction against price cutting by defendant, iit is insufficient in our opinion to support the award of damages. Having been informed that numerous named retailers were selling plaintiff’s products to defendant’s shoppers at less than the fair trade prices established by plaintiff, the latter undertook to investigate the accuracy of the information. The damages awarded by the judgment consist of the expenses of such investigation. It is not charged that defendant was guilty of deliberate falsehood (see [540]*540Squire Records v. Vanguard Recording Soc., 25 A D 2d 190, 192), and if it be assumed that defendant’s shoppers made their purchases by methods of questionable probative force, there is no showing that the methods were conceived in bad faith. The trial court, it is noted, limited its characterization of defendant to “ over zealous, ” and not entirely irrelevant in this connection perhaps is the court’s refusal, with which we are in accord, to grant plaintiff exemplary damages. Settle Order on notice. Concur — Botein, P. J., Rabin, Steuer, Capozzoli and Witmer, JJ.

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Judgment unanimously modified, on the law and on the facts, to the extent of deleting the provision awarding damages to plaintiff, and otherwise affirmed, with $50 costs and disbursements to plaintiff. While the record sustains the injunction against price cutting by defendant, iit is insufficient in our opinion to support the award of damages. Having been informed that numerous named retailers were selling plaintiff’s products to defendant’s shoppers at less than the fair trade prices established by plaintiff, the latter undertook to investigate the accuracy of the information. The damages awarded by the judgment consist of the expenses of such investigation. It is not charged that defendant was guilty of deliberate falsehood (see [540]*540Squire Records v. Vanguard Recording Soc., 25 A D 2d 190, 192), and if it be assumed that defendant’s shoppers made their purchases by methods of questionable probative force, there is no showing that the methods were conceived in bad faith. The trial court, it is noted, limited its characterization of defendant to “ over zealous, ” and not entirely irrelevant in this connection perhaps is the court’s refusal, with which we are in accord, to grant plaintiff exemplary damages. Settle Order on notice. Concur — Botein, P. J., Rabin, Steuer, Capozzoli and Witmer, JJ.

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Bluebook (online)

26 A.D.2d 539, 271 N.Y.S.2d 510, 1966 Trade Cas. (CCH) 71,857, 1966 N.Y. App. Div. LEXIS 3855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/victor-fischel-co-v-r-h-macy-co-nyappdiv-1966.