Klepak v. Eisenberg , 35 N.Y.S.2d 175 ( 1942 )

Appeal by the defendant from a judgment in favor of the plaintiffs, restraining him from selling or offering for sale certain named commodities below the fair trade price fixed by contract between the owners or producers and retailers; and also restraining the defendant from selling any commodities produced by any manufacturer, wholesaler or distributor upon which a minimum retail price has been fixed pursuant to the provisions of chapter 976 of the Laws of 1935. Judgment reversed on the law and a new trial granted, with costs to appellant to abide the event. The foundation of the plaintiffs’ cause of action was the right given to them pursuant to chapter 976 of the Laws of 1935 to enforce contracts entered into between the manufacturer, wholesaler or distributor and a retailer, fixing minimum retail prices. The manner of proof of such contracts was improper in that the contracts failed to fall within the purview of section 374-a of the Civil Practice Act, and there was no other competent evidence to establish the execution of any of the contracts by such wholesaler, manufacturer or distributor. Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ., concur.