People v. Fromer

• Decision Date: 30 August 1962
• Citation: 231 N.Y.S.2d 581
• Parties: The PEOPLE of the State of New York v. Irving FROMER, Defendant. City Magistrates' Court of City of New York, Municipal Term
• Court: New York Magistrate Court

Page 581

231 N.Y.S.2d 581

The PEOPLE of the State of New York v. Irving FROMER, Defendant.

City Magistrates' Court of City of New York, Municipal Term.

Aug. 30, 1962.

Leo A. Larkin, Corp. Counsel, Leonard Scholnick, Asst. Corp. Counsel, for the People.

Davis, Polk, Wardwell, Sunderland & Kiendl, Lawrence E. Walsh, Roland W. Donnem, Theodore R. Brown, New York City, for defendant.

Herbert Pensig, New York City, for amicus curiae.

EVELYN RICHMAN, City Magistrate.

The defendant is charged with violating Chap. 36, § B36-103.0, Sub. c of the Administrative Code, in that he posted two signs larger than twelve inches in height and twelve inches in width containing the words, 'Plaid Stamps', which the People contend referred either 'directly or indirectly' to the price of gasoline.

The price of gasoline was properly displayed on the pumps and it is not disputed that the customer paid that price, whether or not he accepted stamps.

It was stipulated that the stamps were sold to the defendant by the E. F. McDonald Stamp Co., Inc., at the rate of $12.50 to $15.00 for 5000 stamps, and that the stamps could be redeemed by the customers of the defendant for merchandise offered at redemption centers operated by the McDonald Company. There was testimony that the sale of stamps by the McDonald Company was part of a promotional plan, which included advertising by television and radio. It was conceded by the dedendant that the stamps were given to customers at the rate of one stamp for each 10cents of purchase.

The expert witnesses of the defendant on cross-examination by the Corporation Counsel, and also on direct examination, admitted that the receiving of trading stamps could be treated technically as a cash discount, or a promotional expense. They testified, however, that it did not constitute a reduction in price but was a cost of doing business. The People contend that this is an admission that the giving of stamps affects 'the price' of gasoline, 'directly or indirectly.'

To determine what the legislators meant by 'price', it is necessary to examine the legislative history of the statute in question.

The original bill which was presented to the New York City Council provided as follows:

'(b) It shall be unlawful to sell or offer for sale at retail any petroleum products at a price or prices other than the selling price or prices per unit of sale as posted in accordance with the provisions of subdivision a hereof, or to give or allow or offer to give or allow, in connection with such sale or offer for sale, any article of value or any concession whatsoever, whether in the form of rebate, premium, combination offer, discount, lottery or game of change, or in any other manner.'

This bill was vetoed by the then Mayor on the ground that 'it might well be used as a vehicle for price fixing of retail sales.' In its original form it would have...