Opinion
March 25, 1975
Order, Supreme Court, New York County, entered on June 4, 1974, granting plaintiff's motion, adjudging defendant to be in contempt and directing a reference to hear and report as to the amount of defendant's profits, unanimously modified, on the law, to the extent of restricting the scope of the hearing directed to plaintiff's actual loss or injury by reason of defendant's misconduct. As so modified, the order appealed from is affirmed, without costs and without disbursements. Section 773 Jud. of the Judiciary Law permits a fine in the amount of the actual loss or injury suffered by the victim of a civil contempt. The reference directed by Special Term was for the purpose of hearing and reporting as to the amount of defendant's profits. The amount of the defendant's profits on the sales of plaintiff's products below the allowable minimum is not the same as proof of actual loss or injury. Plaintiff did not suffer a loss due to defendant's profits. Its loss resulted from the effects of defendant's price-cutting. Accordingly, the reference ordered should be for the purpose of hearing and reporting on plaintiff's actual loss or injury by reason of defendant's misconduct. As so modified the order appealed from should be affirmed, without costs.
Concur — Stevens, J.P., Markewich, Lupiano, Capozzoli and Nunez, JJ.