Duchen v. Milliken Woolens, Inc. , 19 A.D.2d 521 ( 1963 )

Order, entered on May 26, 1959, dismissing the first and third causes of action of the complaint as insufficient in law, unanimously reversed, on the law, with $20 costs and disbursements, and the motion denied. Defendants manufactured a certain Mazet yarn which they sold to plaintiffs, who in turn manufactured a line of cardigan sweaters from the yarn. Plaintiffs contend that the first cause of action sounds in prima facie tort, alleging that maliciously and solely to interfere with the right of plaintiffs to pursue their lawful business of selling such sweaters at a certain price and “ without just cause or excuse, and with the sole intent of injuring the plaintiffs ”, defendants advised certain named customers and certain potential customers of plaintiffs not to place orders with plaintiffs because the latter would not be able to fill such orders. While plaintiffs upon a trial may have great difficulty in proving defendants were not actuated by self-interest or thought of profit, it cannot be held that, giving the complaint every favorable inference, the possibility of such proof is precluded. The -third cause of action pleads violation of the Donnelly Act (General Business Law, § 340). It alleges that defendants and certain direct competitors of plaintiffs in the manufacture of sweaters conspired, among other things, to refuse to sell Mazet yarn to plaintiffs and to prevent plaintiffs from selling the afore-mentioned line of sweaters at $2.98 each, “to the end that the defendants could sell their Mazet yarns to other manufacturers of sweaters and the other manufacturers of sweaters could sell the sweaters made of such Mazet yarn to the retail public at greatly increased prices.” These and other allegations of the third cause of action spell out such an arrangement or combination to interfere with free enterprise as would constitute a violation of the Donnelly Act. Concur — Botein, P. J., Rabin, Eager and Steuer, JJ.