Defendants move for judgment on the pleadings. The complaint in substance alleges the following facts.
Plaintiff Vornado, Inc., owns and operates a chain of retail department stores in Bergen, Passaic, Morris, Hudson, Middlesex, Monmouth, Somerset and Union Counties. Defendants R. H. Macy & Co., Inc., Stern Bros., Inc., and Gimbel Bros., Inc. operate department stores in one or more of the counties of Essex, Bergen and Passaic. The enactment of chapter 119 of the Laws of 1959, N.J.S. 2A:171-5.8 et seq. (hereinafter referred to as the " act "), renders unlawful the selling or attempting to sell or offering to sell on Sunday certain designated categories of merchandise except as works of necessity and charity or as isolated transactions not in the usual course of business. On November 15, 1959, by virtue of referendums, the cited act became operative in the aforementioned counties.
Plaintiff and its predecessor corporation, Two Guys From Harrison, Inc., operated their store premises on Sundays, selling large quantities of merchandise, an activity subsequently prohibited on Sundays when the act became operative in the counties where the stores were located. Consequently, plaintiff lost the profits it might otherwise have earned and rentals paid by its concessionaires which are largely determined by volume of gross sales.
The remaining codefendants are newspaper publishers whose newspapers are sold and circulated throughout New Jersey. Since the act became operative, the department store defendants have inserted advertisements in the newspapers published by said codefendants and circulated on Sunday in said counties. The advertisements invite the readers to telephone "Macy's," "Gimbel's" and "Sterns" on Sundays for the purpose of ordering goods, and specifically invite telephone communications from New Jersey residents. As a result of these advertisements, the department stores conduct a large Sunday telephone business involving merchandise specifically prohibited from sale on Sunday under the act.
Plaintiff notified the Attorney General of the State of New Jersey and the prosecutors of the counties where the act is operative that such conduct constituted a violation of the subject act, but said officials have failed to take any enforcement action.
Plaintiff complains that while it has been prohibited from selling goods affected by the act on Sundays, the defendant store operators, competitors of plaintiff, are in this manner permitted to sell, offer for sale, and engage in the business of selling goods on Sundays in said counties to customers who would otherwise purchase goods from stores operated by plaintiff on secular days of the week. Finally, it is asserted that the activities of the defendant store owners, aided and abetted by the defendant newspaper publishers, result in discriminatory enforcement of the act and irreparable injury to plaintiff.
A declaratory judgment is sought adjudicating the conduct of defendants to be unlawful and in violation of the act. Plaintiff further seeks to enjoin defendants from engaging in the sale or attempted sale of goods on Sundays through the means described.
An analogous situation was passed upon in People v. Gimbel Bros., Inc. , 202 Misc. 229, 115 N.Y.S. 2 d 857 (Spec. Sess. 1952). There the defendant was charged with violating section 2147 of the New York Penal Law, McKinney's Consol. Laws, c. 40, prohibiting, with certain exceptions, all manner of selling or offering for sale of any property on Sunday. The defendant advertised in the Sunday metropolitan newspapers that customers might telephone the store on Sundays to order the advertised merchandise. The public was not permitted access to the premises. Under section 82 of the New York Personal Property Law, McKinney's Consol. Laws, c. 41, the word "sale" is defined as "an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price." The court held that there is no sale unless the goods are actually transferred or unless there is a transfer of title or property in the goods -- none of which
is accomplished on Sunday. It also held that the advertisement of property for sale in a Sunday newspaper did not constitute an offer of sale but solely an invitation to customers to offer to purchase. It further observed that:
"The addition of a telephone answering service does not turn an advertisement in a Sunday newspaper from an invitation to order into an offer of sale. All that the defendant has done in furnishing a telephone answering service is to give the customer an ...