The opinion
Murphy, J.
(dissenting). All that is required under section 369-b of the General Business Law to justify an injunction is that defendant did willfully and knowingly (1) advertise, (2) offer for sale, or (3) sell, any commodity at less than the price stipulated in any contract entered into pursuant to section 369-a. It is undisputed that defendant knew that the commodity was price-fixed at the time that defendant sold it. Defendant is, therefore, subject to restraint under the second and third clauses of the statute. There is nothing in the statute which justifies withholding the remedy because the defendant did not know that the commodity had been fair-traded as of the time the defendant acquired it.
In Seagram-Distillers Corp. v. Seyopp Corp. (8 Misc 2d 778) Mr. Justice Steuer in 1938 at the New York County Special Term cited Old Dearborn Distr. Co. v. Seagram-Distillers Corp. ( 299 U. S. 183 ) as authority that a “ Plaintiff acquires rights only where merchandise is sold which has been acquired after notice.” That question was expressly left open in the Old Dearborn case (supra, p. 193). Subsequently, Mr. Justice Steuer granted reargument and on reargument granted a temporary injunction. On the basis of the dubious authority of the Seagram-Distillers case (supra) it has been held that an injunction was warranted only where the purchaser had knowledge at the time of acquisition (James Heddon’s Sons v. Callender, 29 F. Supp. 579 ; Frankfort Distilleries v. Stockman, N. Y. L. J., March 29, 1941, p. 1411, col. 5, Hooley, J., at the Kings County Special Term). It was also invoked in Oneida v. Macher Watch Co. (N. Y. L. J., April 8, 1938, p. 1706, col. 3, affd. 254 App. Div. 859 ), but that affirmance may have been predicated on the ground that denial of a temporary injunction was discretionary. The same result was approved in a casual dictum in Lionel Corp. v. Grayson-Robinson Stores (15 N. J. 191).
The foregoing is all of the authority in support of the theory that an injunction will not lie where the merchandise was acquired without knowledge. Shryock v. Association of United *151 Fraternal Buyers ( 135 Pa. Superior Ct. 428 ), cited by the majority, is inapplicable because there an injunction was denied where the defendant had no knowledge of the contract as of the time it sold the commodity.
To the contrary, it was pointed out in Calvert Distillers Corp. v. Goldman ( 255 Wis. 69 ) and in Barron Motor v. May’s Drug Stores ( 227 Iowa 1344, 1346 ) that there was no provision in the pertinent fair trade act which rendered it inapplicable because the purchase had been made prior to receiving notice.
The soundness of the legislative omission to make knowledge at the time of acquisition a prerequisite for issuance of an injunction is illustrated by the facts under consideration. Plaintiff had entered into the fair-trade contract on January 28, 1955, had sent notices to each of its 400 customers in the metropolitan area and a press release to 17 newspapers and magazines in that area, as well as a notice to the trade generally. If, despite such notice, a defendant, as here, can successfully claim lack of knowledge that the commodity was price-fixed, then the efficacy of the statute is seriously curtailed.
The courts cannot read into a plainly worded statute a provision which would be helpful in establishing constitutionality. That would be judicial legislation (Meltzer v. Koenigsberg, 302 N. Y. 523 ; People ex rel. Doctors Hosp. v. Sexton, 267 App. Div. 736, 740 , affd. 295 N. Y. 553 ).
The judgment should be modified by striking from the decretal paragraph thereof everything beginning with the word “except” and ending with the word “agreement”, and as so modified the judgment should be affirmed.
Wenzel and Beldock, JJ., concur with NolaN, P. J.; Murphy, J., dissents and votes to modify the judgment by striking from the decretal paragraph thereof everything beginning with the word ‘ ‘ except ’ ’ and ending with the word ‘ ‘ agreement ’ ’, and to affirm the judgment as so modified, in opinion. Kleinfeld, J., not voting.
Judgment reversed on the law, with costs, and complaint dismissed, with costs. The findings of fact are affirmed.