Marxman Pipes, Inc.
Columbia Pictures Corp.
APPEAL from an order of the Supreme Court at Special Term (BRADY, J.), entered July 21, 1954, in New York County, which granted a motion by defendant, pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice, for a dismissal of each of the causes of action alleged in the second amended complaint on the ground that the same did not state facts sufficient to constitute causes of action. Plaintiff alleged in its complaint that it marketed and sold a toy airplane, that such airplanes
were depicted in a motion picture produced by defendant as selling for 65 cents each, and that actually the selling price of such airplanes was $3 each.
Henry Amster of counsel (Henry Amster and Milton Lipson, attorneys), for appellant.
Ferdinand Pecora of counsel (Stuart G. Schwartz with him on the brief; Schwartz & Frohlich, attorneys), for respondent.
We do not hold that an action may never lie for disparagement of a product in the absence of an intent to injure. We do hold, however, that since the alleged disparagement is in reference solely to the price of plaintiff's product, a cause of action is not stated, at least in the absence of allegations that show the manner in which misstatement of the price accomplished disparagement of quality. Otherwise we would be devising a common-law price-fixing control in commerce.
Moreover, it is general experience that even products with a standard price, for reasons of distress, forced sale, price competition, reduction of inventories, and many other reasons that may come to mind, are sold at prices below--and sometimes well below--the standard. It just does not make sense that, because a price of a prop in an obviously fictional movie is stated to be lower, the quality is thereby necessarily lessened. Time, place, supply and demand, and, sometimes, accident, determine the prices of commodities in a free market. This plaintiff has alleged no actionable harm flowing from the free advertising it received in a nationally and successfully distributed motion picture.
The order appealed from should be affirmed, with costs to the respondent.
PECK, P. J. (dissenting in part).
As I read the complaint in this case, the three causes of action, all arising out of the same event, may be respectively denominated a cause of action for prima facie tort, a cause of action for disparagement of plaintiff's product, and a cause of action in negligence. I would agree with the determination of the court that the complaint is not sufficient to state a cause of action either for prima facie tort or for negligence, but it seems to me sufficient to state a cause of action for disparagement of plaintiff's product.
The question presented by the opinion at Special Term and by the briefs and argument on this appeal is whether it is essential to such a cause of action to allege an intent to injure plaintiff, as would be necessary in the case of a prima facie tort
(Advance Music Corp. v. American Tobacco Co., 296 N.Y. 79) or
whether a cause of action for disparagement of a product can be based on false
and misleading statements made under circumstances which would lead a
reasonable man to foresee the resulting prejudice to ...