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State v. Packard-Bamberger & Co.

Decided: September 16, 1939.

STATE OF NEW JERSEY, ON COMPLAINT OF HARRY LIEF, PLAINTIFF-PROSECUTOR,
v.
PACKARD-BAMBERGER & CO., INC., A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT



On writ of certiorari. See 16 N.J. Mis. R. 479.

For the prosecutor, Pesin & Pesin.

For the respondent, Losche & Mounier.

Before Justices Case, Donges and Porter.

Donges

The opinion of the court was delivered by

DONGES, J. A writ of certiorari was allowed to review the action of the District Court of the Third Judicial District of the county of Bergen in dismissing a complaint alleging violation of section 2 of chapter 394 of the laws of 1938 (Pamph. L. 1938, p. 976) entitled:

"An act to insure and protect fair trade practices in distribution, defining such practices, prohibiting the advertisement, offer for sale or sale of merchandise at less than cost, and fixing penalties for the violation thereof."

Section 2 provides:

"It is hereby declared that the advertisement, offer for sale, or sale of any merchandise at less than cost by retailers is prohibited."

The act defines cost to the retailer in the first section thereof as follows:

"(a) 'Cost of the retailer' shall mean the total consideration necessary for the replacement of the merchandise to the retailer at the retail outlet, such consideration to be determined by applying to said merchandise the same cost per unit as the last quantity purchased by the retailer prior to the sale

of the said merchandise would have cost per unit if bought at the most favorable market price available to the retailer at any time within thirty (30) days prior to the said sale less any customary trade discounts, but exclusive of discounts for cash, display allowances and unearned discounts for volume."

"(c) 'Cost to the retailer' and 'cost to the wholesaler' must be bona fide costs and sales to consumers, retailers and wholesalers at prices which cannot be justified by existing market conditions within this state shall not be used as basis for computing costs with respect to sales by retailers and wholesalers.

"(d) 'Sell at retail' and 'sales at retail' shall mean any transfer of title to tangible personal property for a valuable consideration where such property is to be used by the purchaser for purpose other than resale, manufacture or further processing. The above terms shall also include any such transfer of property where ...


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