24799. Adulteration of tomato puree. U. S. v. 25 Cases of Tomato Puree. De-( fault decree of condemnation and destruction. (F. & D. no. 35329. Sample no. 26050-B.) This case involved a shipment of canned tomato puree that contained exces- sive mold. On April 4, 1935, the United States attorney for the District of Massachu- setts, acting upon a report by the Secretary of Agriculture, filed in the district court a libel praying seizure and condemnation of 25 cases of canned tomato puree at Lynn, Mass., alleging that the article had been shipped in interstate commerce on or about February 2, 1935, by the Oswego Preserving Co., from Holley, N. Y., and charging adulteration in violation of the Food1 and Drugs Act The article was labeled in part: "Oswego Brand Tomato Puree * * * Oswego Preserving Company Distributors Oswego, N. Y." The article was alleged to be adulterated in that it consisted wholly or in part of a decomposed vegetable substance. On May 27, 1935, no claimant having appeared, judgment of condemnation was entered and it was ordered that the product be destroyed. W. R. GBEGG, Acting Secretary of Agriculture. 24800. Agash Refining Corporation v. William R. M. Wharton, et al. Suit in State court to restrain officials of the Department of Agriculture from Inltlatingr seizures under the Federal Food and Drugs Act of a product which had been shipped in interstate commerce Motion for injunc- tion pendente lite denied. Suit discontinued. "*'-"'} On December 1, 1934, the Agash Refining Corporanon, Brooklyn, N. Y., filed a complaint in the Supreme Court of the State of New York against William R. M. Wharton, Daniel M. Walsh, Cleon O. Dodge, A. E. Lowe, Daniel M. Walsh, Olaf Olsen, and J. A. Cummings, praying that the defendants be permanently enjoined from initiating seizures under the Federal Food and Drugs Act of edible oils shipped in interstate commerce by the plaintiff. The complaint averred that complainant refined and marketed edible oils under its trade name "Italian Cook"; that the container was rendered dis- tinctive by coloring and design and bore the words "Italian Cook Brand" and, ''Pure Vegetable Salad Oil"; that the edible oils so packaged consisted of' cottonseed oil, sunflower oil, sesame oil, corn oil, or other similar edible oils, and were correctly described as "Pure Vegetable Salad Oil"; and that the defendants directly or indirectly had initiated seizure of the product on the charge that the label was misleading and that the product therefore mis- branded. The complaint further averred that the labeling was not misleading, but was properly descriptive; that acts of defendants had caused complainant great loss and threatened further loss and irreparable injury unless**restrained; and prayed that the defendants be permanently enjoined from directly or in- directly initiating seizures of complainant's said product, and that a temporary injunction of like tenor and effect be granted. On December 7, 1934, in answer to an order to show cause why the prayer of complainant should not be granted, the defendants with the exception of A. E. Lowe, who was not within the jurisdiction, replied in substance that they were officials of the United States Department of Agriculture whose duty it was to investigate foods and drugs shipped in interstate and foreign com- merce, and to report to their superiors at Washington the results of such in- vestigation; that in the opinion of defendants and that of their superiors at Washington, complainant's product was misbranded; that the actions com- plained of consisted of seizures in various district courts made at the request of the Secretary of Agriculture, and involved goods that had entered interstate commerce; and that the issues involved were determinable solely in the Federal district courts in which libel proceedings had been commenced. On December 7, 1934, a motion for an injunction pendente lite came on for hearing, was argued and denied, the court delivering the following opinion: _(H. G. Wenzel, IT;, Judge) : j A motion having been made herein by the plain- j tiff above named foreman injunction pendente lite restraining the defendants / and others, among other things, from causing to be initiated proceedings against the plaintiff's merchandise, and the said motion having duly come on to be heard before this Court on December 7th, 1934, and it appearing that the de- fendants herein are in each instance officials of the Government of the United ( States in the Food and Drug Administration in the Department of Agriculture thereof, that the seizures heretofore made of the merchandise produced or sold by the plaintiff referred to in the complaint herein have been made in jurisdictions outside the State of New York by officials of the United States, that all acts on the part of the defendants, or any of them, in connection with such seizures or in the steps taken leading thereto were done by them in the performance of their functions as such United States officials, and that all of the acts alleged to be contemplated by the defendants, or any of them, which it is sought to restrain herein will be, or may be, such as they are required to perform in the course of their duties as such officials, and it appearing that all of the merchandise, of which the seizures referred to in the complaint have been effected, was merchandise which before being seized had been transported in interstate commerce, and that all the seizures or acts on the part of the de- fendants herein, or any of them, which plaintiff seeks to restrain, are and will be performed only in respect to merchandise which shall have been transported in interstate commerce and has become subject to the jurisdiction of the United States, And it further appearing, and being admitted in open Court by the attorney for the plaintiff herein that all of the seizures of merchandise heretofore made, of which the plaintiff complains, were preceded by the filing of libels and the issuance of process thereon in the District Courts of the United ? States in the respective Districts wherein such merchandise was then found and such seiz- ures made, and that such seizures were made pursuant to such libels and process so that as to each of said seizures an issue has been judicially ten- dered by the libel pursuant to which the same was made, and that the District Courts in which such libels are filed have jurisdiction to determine the legal- ity of the seizures so effected, and also to determine whether or not the mer- chandise so seized is misbranded within the meaning of the provisions of the United States Statutes forbidding misbranding, and there being no allegation that any different measures or acts of a different character are contemplated by the defendants, or any of them, and the Court being satisfied that it has no jurisdiction to grant the relief herein sought or any portion thereof, Now, therefore, upon reading and filing the summons and verified complaint herein, the order to show cause dated December 1st, 1934, the affidavit of Chester Alan Gash verified December 1st, 1934, and upon all proceedings here- tofore had herein, and after hearing J. Bertram Wegman, Esq., in support of said motion, and Leo J. Hickey, Esq., United States Attorney for the Eastern District of New York, by Vine H. Smith, Esq., Assistant United States Attor- ney, appearing specially herein to oppose this motion on the ground that this Court lacks jurisdiction to grant the relief sought, and due deliberation having been had, it is, upon motion of Leo J. Hickey, United States Attorney for the Eastern District of New York, ORDERED, That the said motion be and the same hereby is denied on the ground that this Court has no jurisdiction to grant the relief sought herein. On May 18, 1935, on motion of the United States attorney, the case was ordered discontinued without the assessment of costs against either plaintiff or defendants. W. R. GREGG, Acting Secretary of Agriculture.