Remington Arms, Inc. v. Harris Berger, Inc.
| Decision Date | 17 August 1955 |
| Citation | 144 N.Y.S.2d 751,208 Misc. 561 |
| Parties | REMINGTON ARMS, Inc., Plaintiff, v. HARRIS BERGER, Inc., Defendant. |
| Court | New York Supreme Court |
Ainsworth & Sullivan, Albany, Frank J. Warner, Jr., Albany, of counsel, for plaintiff.
Ferris, Hughes, Dorrance & Gorben, Utica, for defendant.
Application is made herein on a show cause order for a preliminary injunction enjoining defendant, its agents, servants and employees from further advertising, offering for sale and/or selling plaintiff's products and commodities at prices less than that established in plaintiff's 'Fair Trade Agreements' in the State of New York until a final determination of the issues herein.
The specific merchandise upon which this cause of action is based is shotgun shells, although the motion is inclusive of all merchandise manufactured by plaintiff and now sold or to be sold by defendant.
In the proof before the court it appears that defendant advertised for sale shotgun ammunition manufactured by plaintiff at a price of 25% off list price.
It appears from the affidavit of Mac Berger, President of the defendant corporation that the said ammunition was part of a shock of merchandise of Miller's Sport Shop of Catskill, New York, which defendant acquired on a closing out sale June 10, 1955, and Mr. Berger states that 'the Remington ammunition and the single Remington shotgun acquired from Miller's Sport Shop were advertised for sale by Bergers at reduced prices for the purpose of closing out the small quantity thereof which Bergers acquired from Miller's Sport Shop and also for the purpose of discontinuing handling, selling and delivering such commodities,' and that 'prior to Berger's acquisition of this Remington ammunition and shotgun they had been held and offered for sale by Millers at reduced prices in the course of the closing out sale conducted by Millers, as previously indicated.' Mr. Berger also states that 'Bergers does not and for over 5 years has not regularly handled or engaged in retail sale of firearms or ammunition, and there is no present intention of going into the firearms or ammunition line of goods after this Miller stock is disposed of.'
Plaintiff contends that there has been a violation by defendant of Section 369-b of the General Business Law, which reads as follows:
'Wilfully and knowingly advertising, offering for sale or selling any commodity at less than the price stipulated in any contract entered into pursuant to the provision of section three hundred sixty-nine-a, whether the person so advertising, offering for sale or selling is or is not a party to such contract is unfair competition and is actionable at the suit of any person damaged thereby.'
Defendant obviously was not a party to the contract between plaintiff and Miller's Sport Shop, but it is apparent from the section that it applies whether or not defendant was a party to such contract.
Defendant, by its answering affidavit, has admitted all the basic allegations contained in the verified complaint and motion papers, and defends upon the ground that its sale of plaintiff's merchandise below the so-called fair trade level, is embraced by the exception contained in Subd. 2(a) of Section 369-a of the General Business Law. The section reads as follows:
'2. Such provisions in any contract shall be deemed to contain or imply conditions that such commodity may be resold without...
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Simonetti, Inc. v. State ex rel. Gallion, 6 Div. 415
...of the Court. There have been some peculiar applications of price and price-maintenance legislation. 'In Remington Arms [, Inc.] vs. Berger [, Inc., 208 Misc. 561], 144 N.Y.S2d 751, a dealer in brand-named ammunition, who had purchased a quantity of it at a discount at a closeout sale, was ......
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Cluett, Peabody & Co. v. J.W. Mays, Inc.
...exception contained in the statute (General Business Law, § 369-a, subd. 2[a]), is inapplicable (cf. Remington Arms v. Harris Berger, Inc., 208 Misc. 561, 144 N.Y.S.2d 751), although defendant asserts that the determination was proper, to achieve substantial justice between the parties. We ......
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House of Seagram, Inc., Seagram Distillers Co. Division v. Assam Drug Co.
...to protect a producer from damage to his good will resulting from price cutting at the retail level. Remington Arms, Inc. v. Harris Berger, Inc., 208 Misc. 561, 144 N.Y.S.2d 751; Mead Johnson & Company v. Martin Wholesale Distributors, Inc., 408 Pa. 12, 182 A.2d 741. The proprietor of the g......