Matter of Lefkowitz

No. 4996N (N.Y. App. Div. March 16, 1972)

The provisions of New York's Mason Law which, inter alia, forbids the sale of articles made from crocodile skins, apply to a person who holds watchbands in the state and purports to sell them in other states in a manner so that technically the sales are consumated outside New York State. Such sales may be enjoined.

Counsel for New York
J. P. Corcoran
Office of the Attorney General
New York, N.Y.

Counsel for Corum Watch Corporation
Julius Zizmor
55 Liberty Street
New York, N.Y. 10005

[2 ELR 20512]

PER CURIAM:

Judgment Supreme Court, New York County (Leff, J.), entered on Dec. 17, 1971, reversed, on the law, without costs and without disbursements, and vacated, the application of petitioner-appellant granted and the respondent enjoined.

There is no doubt of the New York State Legislative intent to bar the sale of watch bands made from crocodile skins. Not only may they not "be sold or offered for sale * * * within the State of New York * * *" (Agriculture and Markets Law sec. 358-a. the Mason Law), no person may leave the state "with intent to elude any of the provisions of this article," section 367.

Defendant, while it claims not actually to sell in the state, clearly holds these watchbands for sale and supply for outside of the state.

The constitutionality of the act has already been sustained (Nettleton Co. v. Diamond, 27 N.Y.2d 182, 1970, app. dism. sub nom. Reptile Products Ass'n v. Diamond, 401 U.S. 969 and Palladio, Inc., v. Diamond, 321 F. Supp. 630 aff'd 440 F.2d 1319, cert. den. __ U.S. __, 40 L.W. 3263, No. 71-279, Dec. 7, 1971). It follows that the respondent must be enjoined from further sales (People v. Fuchs Bros. Sales Corp., Sup. Ct. N.Y. County, Greenfield, J., N.Y.L.J., Jan. 6, 1972, p. 2, col. 8).

All concur except McGivern, J., who dissents in the following memorandum:

That the State of New York may interdict sales intra-state, I have no doubt.

But whether the State of New York can extend its prohibition to sales consummated beyond its borders, is not free from doubt.No more than the United States can enjoin sales by a defendant, permissible in a foreign country. (Luft v. Zande Cosmetic Co., 142 F.2d 536 cert. denied 323 U.S. 756). Even the Federal Government, in its regulation of commerce, stops at the water's edge.

And I further find that this precise question, whether sales permissible in other states, can be enjoined here in the home state (New York), has not yet been passed on. In the Nettleton Company case (63 Misc. 885; 27 N.Y.2d 182), that case dealt with a New York manufacturer of the forbidden species, which company was dealing with sales in New York State, the goods having been acquired prior to the effective date of the act. The lower court expressly stated that it was not passing on whether the legislation violated the Commerce clause of of the United States Constitution.I have no quarrel with the conclusion that prohibited sales within New York State are not violative of the Commerce clause, as well explicated per Schileppi, J. Indeed, the constitutionality of the Mason Law is not before us, but its application to sales of the prohibited items to vendees in states where the sales are legal and where the sales are to be consumated. And it is to be noted the crocodilian items here at issue are present in New York, for trans-shipment purposes, with the approval of the Federal Government, and that forty-eight of the fifty states regard sales of these items as perfectly legal; and there is nothing in the act barring possession of such goods in New York, or making mere possession indicative of an illegal intent.

The recent Palladio case (321 F. Supp. 630, aff'd. 440 F.2d 1139) referred to by the majority, involved a Massachusetts corporation, 40 percent of whose sales were to New York retails. We have before us a horse of another color: a businessman, legally in possession of items, whose professed intent is not to sell to New York vendees, but to consummate sales in other states, where, unlike New York, such sales are not forbidden. Nor are such sales forbidden by the Federal Government. Accordingly, I repeat that the precise question has not been passed on either by the New York Court of Appeals or by the Federal courts, and I doubt very much of New York can project its prohibition into foreign states, based on a claimed exercise of police power, and attempt to regulate the nature of sales within the foreign states, where such sales are permitted. (See Baldwin v. G. A. F. Seelig, 294 U.S. 511), per Cardozo, J.

Thus, I agree with Special Term, that since the goods are here legally, and since the Corum Watch Corp. does not evidence any intention of doing anything it does not have a constitutional right to do, it has done no act justifying an injunction, and the petition was properly dismissed.

Order filed.