People v. Litt-Chinitz, Inc.

• Decision Date: 21 January 1963
• Docket Number: INC,LITT-CHINIT
• Citation: People v. Litt-Chinitz, Inc., 239 N.Y.S.2d 58, 38 Misc.2d 864 (N.Y. App. Term 1963)
• Parties: PEOPLE of the State of New York, Respondent, v., Appellants (5 cases).
• Court: New York Supreme Court — Appellate Term

Page 58

239 N.Y.S.2d 58

38 Misc.2d 864

PEOPLE of the State of New York, Respondent, v. LITT-CHINITZ, INC., Appellants (5 cases).

Supreme Court, Appellate Term, Second Department.

Jan. 21, 1963.

Emanuel Schoenzeit, New York City, and Stanley A. Alt, New York City, for appellant.

Leo A. Larkin, Seymour B. Quel, Corp. Counsel, New York City, for respondent.

Before HART, DI GIOVANNA and BROWN, JJ.

WALTER R. HART, Justice.

Defendant appeals from five separate judgments of conviction rendered after trial for violations of certain licensing provisions set forth in Article 28, chapter B32, of the Administrative Code, relating to 'going out of business' sales at its premises at 1122 Kings Highway, Brooklyn, New York. The actions were jointly tried on June 8, 1961 and the maximum sentence of a $500 fine on each complaint was imposed, which fine has been paid.

Four of the charges were for alleged violations of section B32-206.0, which provides:

' § B32-206.0 License required.--It shall be unlawful for any person to publish or conduct any sale of the type herein defined without a license therefor and a license issued pursuant to this article for a sale advertised as a 'branch store discontinuance sale' shall apply only to, and the sale shall be conducted only at the premises of the branch which is being discontinued.' (Emphasis supplied)

The terms 'sale,' 'publish' and 'advertising' are defined in section B32-205.0:

'1. 'Sale.' A sale or an offer to sell to the public goods, wares, and merchandise of any and all kinds and descriptions on hand and in stock in connection with a declared purpose, as set forth by advertising on the part of the seller that such sale is:

'a. Anticipatory to the termination, closing, liquidation, wind-up, discontinuance, removal, conclusion, or abandonment of the business, and advertised in the following phrases and in any other phrase or phrases of like or similar language which reasonably convey to the public that the sale is being conducted for such purpose: 'going out of business sale,' 'trustee's sale,' 'liquidation sale,' 'executor's sale,' 'administrator's sale,' 'insolvent sale,' 'mortgage sale,' 'adjustor's sale,' 'receiver's sale,' 'loss of lease sale,' 'forced out of business sale,' 'branch store discontinuance sale,' 'removal sale,' 'warehouse removal sale.'

* * *

* * *

'2. 'Publish,' 'publishing,' 'advertisement,' 'advertising.' Any and all means of conveying to the public notice of sale or notice of intention to conduct a sale, whether by word of mouth, by newspaper advertisement, by magazine advertisement, by handbill, by written notice, by printed notice, by printed display, by billboard display, by poster, by radio announcement, by television announcement, and any and all means including oral, written or printed.'

The fifth complaint, alleging a violation of section B32-215.0, will be discussed infra.

From the stipulations and evidence in the record it appears that on October 20, 1961 the Commissioner of Licenses issued three separate 'going out of business sale' licenses for the period from October 23, 1961 to November 21, 1961 for each of the three separate stores owned by defendant, one of which was located on Kings Highway in Brooklyn, and the others located in New York and Bronx Counties. The licenses were issued pursuant to applications in the form prescribed by section B32-207.0, which requires, inter alia, a statement as to the means to be employed in publishing the sale, including the text of any and all proposed advertising and an itemized list of the goods to be offered for sale and where and from whom such stock was purchased. After a hearing the License Commissioner on November 17, 1961 by letter addressed to defendant revoked the license, the reason therefor not appearing in the evidence. It is to be observed that pursuant to section B32-208.0, the Commissioner may issue such license for a period not exceeding 30 days. By section B32-209.0 it is provided that upon proof by the licensee that the stock itemized in the original application has not been entirely disposed of, the Commissioner in his discretion may renew the license for two successive 30-day periods.

Three of the four charges that the defendant violated section B32-206.0 which requires a license for conducting a 'going out of business sale' are predicated on the fact that defendant placed advertisements in the World-Telegram on February 6, 1962, in the New York Post on February 8, 1962, and in the New York Mirror on February 9, 1962, which the People claim are advertisements of a sale 'anticipatory to the termination, closing, liquidation * * * of the business.' While not advertised in any of the specific phrases set forth in the statute, it is contended they were nevertheless 'phrases of like or similar language which reasonably convey to the public that the sale is being conducted for such purpose.' The convictions on these charges were based on exhibits consisting of copies of these advertisements together with stipulations and testimony of inspectors of the License Department that on the dates the advertisements appeared the inspectors visited defendant's premises on Kings Highway and saw 'sales' actually in progress.

Defendant urges that the text of the advertisements was not of a 'going out of business' nature and that since it was acquitted of the 'same charge' in New York and Bronx Counties with respect to the same advertisements, that for the single act of placing the advertisements it is being placed in double or triple jeopardy by the proceedings in Kings County. It is the position of the prosecution that the gravamen of the charge is not the advertisements per se but the acts of conducting the sales here and that these are different from those sales held in New York and Bronx Counties.

In this narrow aspect of the case the contention of the People is valid. The acts of the sales are different from those in New York and The Bronx, and charging defendant with these different acts is not interdicted by the federal and state constitutional provisions against double jeopardy nor is defendant afforded immunity from prosecution by section 1938 of the Penal Law (People v. Fennell, 10 A.D.2d 78, 197 N.Y.S.2d 327; People ex rel. Maurer v. Jackson, 2 N.Y.2d 259, 159 N.Y.S.2d 203, 140 N.E.2d 282; People ex rel. Wasmund v. Wallack, 25 Misc.2d 277, 202 N.Y.S.2d 333; People v. Miller, 34 Misc.2d 611, 229 N.Y.S.2d 290). It must be observed, however, that in its contention the People lose sight of the fact that one of the complaints (i. e. Docket #1303) charged a violation of the statute on February 8, 1962 in that defendant 'did unlawfully advertise a sale in the New York Post conveying the impression to the public that said sale is anticipatory to the termination of the business at the aforesaid address, without having a license therefor.' There is no allegation in the complaint that the act of conducting a 'sale' occurred. However, with respect to all of the charges of the violation of section B32-206.0 stemming from these three advertisements, the statute in its provision 'It shall be unlawful for any person to publish or conduct any sale of the type herein defined without a license therefor * * *' necessarily includes the definition of a sale set forth in section B32-205.0 and clearly indicates that an advertisement to that effect is an integral part of the offense. If, therefore, the advertisement for a 'sale' does not fall within the definition of the statute, defendant is not guilty of a violation thereof.

By the decisions in Bronx and New York Counties acquitting the defendant, the prosecution is 'collaterally-estopped' from asserting that the advertisements are in 'phrases of like or similar language which reasonably convey to the public that the sale is being conducted' for the purpose of terminating defendant's business. While the records of the proceedings in Bronx and New York Counties are not before us, the People do not dispute that the identical advertisements constituted the bases of those prosecutions, but upon the trial and here on the appeal rests its position on the theory that the sales were 'acts' different from those prosecuted in the other counties. The trial court in disposing of defendant's contention of double jeopardy merely stated that it wasn't bound by what its colleagues in the other counties had held, that stare decisis was not applicable and found that the advertisements were such as to cause a layman to believe that the sales were being held to permit defendant to go out of business.

The doctrine of collateral-estoppel as distinguished from double jeopardy or its civil counterpart, res judicata, relates to a specific issue or issues as distinguished from all of the issues in a prior litigation. Whereas in res judicata, which requires an identity of parties (or their privies), all issues actually raised or which could have been raised are deemed conclusively adjudicated, for the doctrine of collateral-estoppel to apply there need not necessarily be an identity of parties (or their privies), but same may also be asserted defensively to actions to which they were strangers (Israel v. Wood-Dolson Co., 1 N.Y.2d 116, 151 N.Y.S.2d 1, 134 N.E.2d 97). The distinction between the doctrines is clarified in 36 New York University Law Review 1160-1161:

'Collateral estoppel, however, applies only when the action in the subsequent suit is on a different cause of action from that asserted in the first proceeding, and it applies to issues of fact or law rather than to causes of action.

'When the cause of action is identical with that of the prior suit, a party is prevented from raising not only matters actually litigated in a former suit, but also all matters which might have been litigated. Thus, a plaintiff may not assert a cause of action which differs in form, but not in substance, from that alleged in a previous suit merely by bringing up new...