Opinion
March 23, 1942.
In an action to enjoin the defendant from violating a fair trade contract by selling plaintiff's liquor products below the minimum retail resale price established by plaintiff, the complaint stated sufficient facts to constitute a cause of action, although it was not alleged therein that plaintiff possessed a license from the Alcoholic Beverage Control Board. The contract which is the basis of the complaint did not relate to any act on the plaintiff's part for which a license was required by the Alcoholic Beverage Control Board. The defendant's contention that plaintiff pursued a discriminatory course of conduct in the enforcement of its fair trade contracts was sufficiently overcome by plaintiff's replying affidavits, which negative any issue raised that plaintiff did not diligently proceed against retailers who violated the minimum retail resale price provisions of the contracts. That plaintiff did not proceed by legal action against all violators simultaneously is no bar to granting the relief sought. The order denying plaintiff's motion for a temporary injunction restraining defendant from advertising, selling or offering for sale any of plaintiff's liquor products at prices below the minimum retail resale prices established by plaintiff pursuant to its contract with the defendant, is reversed on the law, with ten dollars costs and disbursements, and the motion is granted, with ten dollars costs. Lazansky, P.J., Carswell, Johnston, Adel and Close, JJ., concur.