
    BOWLES, Price Administrator, v. IZAKOWITZ et al.
    District Court, S. D. New York.
    June 12, 1945.
    Callman Gottesman, Chief Enforcement Atty., of New York City, for plaintiff.
    S. Robert Zimmerman, of New York City, for defendants.
   RIFKIND, District Judge.

Plaintiff moves for an injunction pendente lite to restrain violations of M.P.R. 574, relating to cattle and calves. The affidavit submitted in support of the application shows that during the accounting period February 1, 1945, to February 28, 1945, defendants paid, in the aggregate, $28,004.50 for cattle which, by application of the formula established by the Regulation, were subject to a ceiling of $27,516.79. They have overpaid $487.72. Defendants admit the overpayment. They assert, however, that under the Regulation the fact of overpayment cannot be ascertained until after the cattle have been slaughtered and their yield determined. This is a defense which directly or indirectly challenges either the validity or the wisdom of the Regulation. The resolution of such questions has been withdrawn by Congress from the jurisdiction of the district court.

It does appear, however, that the amount of the excess payment is very small. Nothing of motive or purpose on the part of the defendants appears. The violation occurred during the very first month of the operation of the Regulation. Under the circumstances, I believe a temporary injunction will not serve the purpose of effectuating the policy of the statute. However, should further violations occur, a basis would be available for the inference that defendants’ violation is not the product of mischance but of systematic disregard of the law. Hecht Co. v. Bowles. 1944, 321 U.S. 321, 328, 64 S.Ct. 587, 88 L.Ed. 754.

The motion is, therefore, denied, with leave to renew.  