Opinion
April 21, 1939.
Appeal from Supreme Court, New York County.
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.
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.