Mackin v. Becker

(dissenting). On this motion to dismiss for insufficiency, the amended complaint is entitled to every fair intendment. Its allegations show that the defendants-respondents have represented, not only to the public generally but to the plaintiff’s customers, that their publication is an official magazine and that the plaintiff’s is not; that this latter representation that their publication is official is contrary to fact. It is further alleged that defendants’ publication simulates plaintiff’s report “ in the shape, the size and the lettering and general appearance * * *.” It seems to me, therefore, that considered merely as a pleading the complaint sets forth a good cause of action for unfair competition. I, accordingly, dissent from the order granting the motion to dismiss and vote for reversal and denial of the motion.

Present — Martin, P. J., O’Malley, Glennon, Untermyer and Cohn, JJ.; O’Malley, J., dissents in opinion.

Order affirmed, with twenty dollars costs and disbursements. No opinion.