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Sunbeam Corp. v. Windsor-Fifth Avenue Inc.

Decided: December 21, 1953.

SUNBEAM CORPORATION, PLAINTIFF-RESPONDENT,
v.
WINDSOR-FIFTH AVENUE, INC., A NEW YORK CORPORATION, AND WINDSOR-FIFTH AVENUE, INC., A NEW JERSEY CORPORATION, DEFENDANTS-APPELLANTS



On appeal from Superior Court, Chancery Division.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Burling, J.

Burling

This is an appeal by the defendants, Windsor-Fifth Avenue, Inc., a New York corporation authorized to do business in New Jersey, and Windsor-Fifth Avenue, Inc., a New Jersey corporation (hereinafter called the defendants), from an interlocutory order of the Superior Court, Chancery Division, entered on June 12, 1953 on motion of the plaintiff, Sunbeam Corporation, an Illinois corporation (hereinafter called Sunbeam). The appeal, addressed to the Superior Court, Appellate Division, was certified on our own motion prior to hearing there. The action is a "fair trade" controversy wherein Sunbeam sought an accounting and injunctive relief. An interlocutory injunction was granted therein against the defendants on May 8, 1953, and was appealed. The pertinent facts concerning the suit are expressed in our opinion filed in the disposition of that appeal. See Sunbeam Corp. v. Windsor-Fifth Avenue, Inc., 14 N.J. 222 (1953).

The motion which resulted in the order of June 12, 1953 here appealed was addressed by Sunbeam (in its notice thereof) to the trial court under Rules 3:34-1 and 3:37-1 (properly referred to as Rules 3:16-31 and 3:16-37, by amendment effective January 1, 1953; now R.R. 4:24-1 and 4:27-1, effective September 9, 1953). The order required the defendants to produce and to permit Sunbeam or its attorneys or agents to inspect and have copied or photographed all records and documents setting forth defendants' purchases and sales of Sunbeam appliances from July 14, 1952 to and including April 27, 1953, including purchase invoices, sales tickets and such other documentary evidence as may be in possession of the defendants, their servants, agents or attorneys. The order further required the defendants' president, Mr. Hubert Hubschmann, to answer the following questions:

1. "Q. Where do you get Sunbeam merchandise."

2. "Q. Do you get this merchandise from a Sunbeam distributor?"

3. "Q. I wish to be quite specific; will you state to us from what Sunbeam distributor you obtained the merchandise which you sell at your store?"

4. "Q. Then I repeat the question that you refused to answer, and substitute instead of distributor the word wholesaler. Will you tell us the names of the wholesalers?"

5. "Q. I now ask you from what retailer did you get our merchandise?"

6. "Q. From whom did you buy?"

7. "Q. Returning, Mr. Hubschmann, to the examination, did you state to Mr. Van Nell that the defendants had several hundred thousand dollars worth of Sunbeam appliances on their hands and would run a close out sale for ninety to a hundred and twenty days which would ruin Sunbeam in New Jersey?"

8. "Q. Did you further say that Sunbeam couldn't do anything about such an operation and that this ...


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