Victor Fischel & Co. v. R. H. Macy & Co.

Judgment unanimously modified, on the law and on the facts, to the extent of deleting the provision awarding damages to plaintiff, and otherwise affirmed, with $50 costs and disbursements to plaintiff. While the record sustains the injunction against price cutting by defendant, iit is insufficient in our opinion to support the award of damages. Having been informed that numerous named retailers were selling plaintiff’s products to defendant’s shoppers at less than the fair trade prices established by plaintiff, the latter undertook to investigate the accuracy of the information. The damages awarded by the judgment consist of the expenses of such investigation. It is not charged that defendant was guilty of deliberate falsehood (see *540Squire Records v. Vanguard Recording Soc., 25 A D 2d 190, 192), and if it be assumed that defendant’s shoppers made their purchases by methods of questionable probative force, there is no showing that the methods were conceived in bad faith. The trial court, it is noted, limited its characterization of defendant to “ over zealous, ” and not entirely irrelevant in this connection perhaps is the court’s refusal, with which we are in accord, to grant plaintiff exemplary damages. Settle Order on notice. Concur — Botein, P. J., Rabin, Steuer, Capozzoli and Witmer, JJ.