
    The People of the State of New York, Respondent, v. Minjac Corporation, Appellant.
    Argued January 24, 1958;
    decided May 1, 1958.
    
      
      David Margolis and Irving A. Rubin for appellant.
    
      Joseph F. Gagliardi, District Attorney {Warren J. Schneider of cousel), for respondent.
   Burke, J.

The defendant corporation was charged with and convicted of a violation of section 421 of the Penal Law in that it displayed in its shop windows, placards or posters advertising the sale of merchandise at large discounts which representations were found to be untrue, deceptive and misleading. These findings have been affirmed by the County Court. To that affirmance this appeal is directed.

The applicable portion of section 421 of the Penal Law provides that any corporation which with the intent to sell or in any way dispose of merchandise directly or indirectly to the public “ makes, publishes * * * or places before the public * * * in the form of a * * * poster, bill, sign, placard * * * an advertisement * * * which * # * contains any assertion, representation or statement of fact which is untrue, deceptive or misleading, shall be guilty of a misdemeanor.”

Photographs of three advertising signs displayed in the windows of defendant’s store were offered in evidence. They read:

Westchester First TOY DISCOUNT Super Market 20% to 40% OFF
Largest Selection of
Standard
Brand
TOYS
20% to 40% OFF
TOYS
20% to 40% OFF Come In And Browse Around

These photographs also revealed a display of games and other toys clustered in the windows beneath the signs.

A competitor of the defendant, engaged for seven years in the toy business, testified that after seeing these signs and the display of toys he entered and purchased three standard brand games. Two of these, according to the witness, were sold to him by defendant’s employee at a price in excess of the established prevailing price of such games in the community. A third was sold to him for no less than the established and customary retail price.

The witness as one engaged in and familiar with the subject was competent to testify to the existence of an ordinary, established or prevailing price for brand name toys in the area. His testimony was credible and is not now subject to impeachment. Accepting this, the question of guilt becomes one of fact the review of which is not within our jurisdiction.

Nothing in our law or the circumstances of this case required defendant to sell its merchandise at any fixed price. Quite correctly defendant points out that it was entitled to place its own price upon the standard brand toys involved and then to discount it as it deemed appropriate. But if that is what was done it should have been made clear in the advertisements. Defendant was not permitted to establish its own prices on these toys at levels considerably higher than the prices customarily charged by other vendors, mark those prices down to a point equal to or still in excess of the standard prices and then, by means of deceptive advertising create the impression that they could be purchased for less in its store than they could generally be obtained elsewhere. This, it seems to us, was the effect of these signs. The toys, standard brand and so advertised, were sold in different establishments throughout the community at a customary or established price. By referring to these toys as standard brand and indicating that it was giving “20% to 40% OFF ”, defendant left the impression that the price being charged was 20% to 40% less than the prevailing price. At least, this conclusion of the courts below is not completely unsupportable. Consequently the finding cannot be disturbed.

Defendant contends that the conviction must be set aside because the signs referred to toys and the evidence in the record refers to the purchase of games and not toys. The effort to distinguish between games and toys is plainly artificial and strained. Any doubt as to whether the word 11 toys ’ ’ was intended to embrace games ” is resolved by reference to the record of the trial which indicates that the word ‘ ‘ toy ’ ’ is used 27 times during the direct testimony of the People’s witnesses without objection by the defendant. Indeed the attorney for the appellant characterized the three games as “ toys ” and the president of the defendant corporation, testifying for the defense, listed several games as examples of merchandise which were sold at a discount.

Inasmuch as the appropriateness of a discretionary sentence is not open to our review, the order of the County Court of Westchester County should be affirmed.

Van Voobhis, J.

(dissenting). Arnold Reischman, a newcomer in the city of New Rochelle, formed the defendant corporation of which he is president which is engaged in selling toys and other items of merchandise. He testified that on November 14, the day when it was accused of untrue and misleading advertising under section 421 of the Penal Law, he had a thousand different items on sale. The advertising signs displayed in his window appear in the five photographs. One consists of four lines. It reads:

Westchester First TOY DISCOUNT Super Market 20% to 40% OFF

The information charges that the sealer of weights and measures in New Rochelle “ did cause to purchase three (3) items of standard brand toys, and that two of said toys were 9 cents more in cost than standard retail price, and the other one (1) item was of standard retail price.”

Several signs were displayed in addition to the one set ■forth above, reading ‘ Largest selection of standard branu toys, 20% to 40% off ”, and Toys 20% to 40% off. Come in and browse around ’ ’. The sealer of weights and measures made no purchases himself. The conviction of defendant depends entirely on the testimony of one of his competitors named Philip Schlossberg. Purchases by him at defendant’s store are the ones mentioned in the information, which states that two items of standard brand toys were bought at 9 cents more in cost than standard retail price. These alleged toys were a game known as Sorry” for which he paid $2.59 instead of $2.50, and “ Fun Cards ”, which he described as “ an educational game for pre-school children ”, for which he paid $1.59 instead of $1.50, which he testified was the standard brand retail price. This witness characterized these games as standard brand toys in the parlance of the trade.

Conceding this statute to be a legitimate exercise of the police power, it seems to us that this information has to be dismissed for the reason that these games known as “ Sorry ” and “ Fun Cards ” were not toys. It was conceded by the People that the signs in the window would not have related to playing cards. These two games of “ Sorry ” and Fun Cards ” are children’s card games. Neither is “ Monopoly ” a toy but it too is a card game, which Schlossberg also bought although not at a higher price than this witness testified was its standard brand price. There is a difference in common usage between what are toys and what are games. Moreover, the discount signs did not indicate that every item, even of toys, would be sold at a reduced price. There were 1,000 different types of articles on display, and, as in the case of many bargain sales, not all of them were priced at a discount. The signs meant that 20% to 40% price reductions could be obtained on a substantial number of standard brand toys. There is no evidence that this was not the case in appellant’s store. The evidence, as we view it, does not support the statements made in the majority opinion on this phase of the case. This advertisement proclaimed that toys Avere being sold at 20% to 40% off. Proof is insufficient merely to the effect that, some toys were not sold at these discounts. There is no evidence that many standard brand toys were not being offered at 20% to 40% reductions. There was no advertising or representation that every toy would be sold at 20% to 40% off. This is a criminal statute, to be strictly construed. The whole subject of discounts and markdowns is involved in so much confusion, and these practices are so common, even in the best regulated stores, that it is difficult to unravel with the precision which is necessary to a criminal prosecution. Here it seems to us that the defendant could not be convicted of false advertising, especially when the advertising referred exclusively to toys, and the two purchases in question were of what are not commonly known as toys but as games.

The defendant’s conviction should be reversed and the information dismissed.

Chief Judge Conway and Judges Desmond and Dye concur with Judge Burke ; Judge Van Voorhis dissents in an opinion in which Judges Fuld and Froessel concur.

Order affirmed.  