Opinion
March 1, 1967
Order, entered on December 3, 1965, denying motion to dismiss complaint, unanimously reversed, on the law, without costs or disbursements, and the motion granted, with permission to plaintiff to move at Special Term for leave to replead his individual cause of action. Appeal from order entered on March 24, 1966, denying reargument dismissed. The complaint in this action for damages and injunction, brought by plaintiff "individually and on behalf of himself and all other similarly situated consumers of milk in the City of New York," charges an unlawful conspiracy by appellant and other milk companies pursuant to which the price of milk to consumers in New York City was fixed by wrongful means at a specified minimum price. Authorities such as Society Milion Athena v. National Bank of Greece ( 281 N.Y. 282, 292), Gaynor v. Rockefeller ( 15 N.Y.2d 120, 129), and Onofrio v. Playboy Club of N.Y. ( 20 A.D.2d 3, revd. on dissenting opinion, 15 N.Y.2d 740) indicate that on this record a class action is not maintainable. The basis of plaintiff's individual cause is not clearly alleged, and it is observed that the affidavits submitted in opposition to the motion do not include one by himself. Settle order on notice.
Concur — Botein, P.J., Stevens, Rabin and Bastow, JJ.