
    Metallic Flowers, Inc., Appellant, v. City of New York et al., Respondents.
    Argued November 17, 1958;
    decided March 5, 1959.
    
      
      Borris M. Komar for appellant.
    I. The City of New York cannot under its police power seize summarily an article innocuous to public health. (Minnesota v. Barber, 136 U. S. 313; Mugler v. Kansas, 123 U. S. 623; Santell v. New Orleans & C. R. R. Co., 166 U. S. 698; Lochner v. New York, 198 U. S. 45; People ex rel. Copcutt v. Board of Health, 140 N. Y. 1; Phillips v. Gorham, 17 N. Y. 270; Colon v. Lisk, 153 N. Y. 188; People ex rel. Lemon v. Elmore, 256 N. Y. 489; Matter of Kress & Co. v. Department of Health, 283 N. Y. 55; F. T. B. Realty Corp. v. Goodman, 300 N. Y. 140; Jewish Consumptives’ Relief Soc. v. Town of Woodbury, 230 App. Div. 228, 256 N. Y. 619.) II. Section 135 of the Sanitary Code is invalid as contravening section 6815 of the State Education Law completely covering the same subject. (Matter of Bakers Mut. Ins. Co. [Dept. of Health], 301 N. Y. 21; Morengo v. Rowland, 263 Ill. 531; Matter of Kress & Co. v. Department of Health, 283 N. Y. 55; Matter of Federal Tel. & Radio Corp. [Corsi], 301 N. Y. 95; Matter of Levine v. O’Connell, 275 App. Div. 217, 300 N. Y. 658; Packer Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184; Pollard v. Trivia Bldg. Corp., 291 N. Y. 19; People v. County of Westchester, 282 N. Y. 224; City of New York v. Maltbie, 274 N. Y. 90; People ex rel. Copcutt v. Board of Health, 140 N. Y. 1.) III. Section 116 of the Sanitary Code is vague and indefinite. In any case, defendants failed to prove that the labeling on plaintiff’s bracelet is false or misleading in any particular. (United States v. 6 Devices, 38 F. Supp. 236; People v. Hildebrandt, 308 N. Y. 397; People v. Vetri, 309 N. Y. 401; People v. Taylor, 192 N. Y. 398; People v. Werner, 174 N. Y. 132; People v. Diaz, 4 N Y 2d 469.) IV. The court expressly held that section 116 of the Sanitary Code is invalid, unless it requires willful intent. (Fougera & Co. v. City of New York, 224 N. Y. 269; McChord v. Louisville & N. R. R. Co., 183 U. S. 498; Seven Cases v. United States, 239 U. S. 510; Coe v. Schultz, 47 Barb. 64; People v. Richter’s Jewelers, 265 App. Div. 767, 291 N. Y. 161.) V. The Food and Drug Law did not confer power on the courts to determine the efficacy of a therapeutic device. (Stunz v. United States, 27 F. 2d 575; American School of Magnetic Healing v. McAnnulty, 187 U. S. 94; United States v. American Labs., 222 F. 104; Reilly v. Pinkus, 338 U. S. 269; United States v. Chichester Chem. Co., 298 F. 829; United States v. Fifty-Nine Tubes, 32 F. Supp. 958.) VI. The Food and Drug Law does not regulate dosage of a therapeutic remedy.
    
      Charles H. Tenney, Corporation Counsel (Anthony Curreri and Seymour B. Quel of counsel), for respondents.
    I. The Sanitary Code parallels and follows the substantive provisions of the Federal Food, Drug and Cosmetic Act of 1938, as do the pertinent provisions of the State Education Law. All three deem a device to be misbranded if its labeling is false or misleading in any particular, including representations as to therapeutic effect. Intent to mislead need not be shown. (United States v. Johnson, 221 U. S. 488; United States v. American Druggists’ Syndicate, 186 F. 387; United States v. 11 ¼ Dozen Packages, 40 F. Supp. 208.) II. The overwhelming weight of the evidence adduced upon the trial established that plaintiff’s device was misbranded, not just in any particular, but in almost every particular. (United States v. 23, More or Less, Articles, 192 F. 2d 308; United States v. 6 Devices, 38 F. Supp. 236; United States v. One Device, 160 F. 2d 194; United States v. 50% Dozen Bottles, 54 F. Supp. 759; American School of Magnetic Healing v. McAnnulty, 187 U. S. 94; Beilly v. Pinkus, 338 U. S. 269; United States v. Hoxsey Cancer Clinic, 198 F. 2d 273, 344 U. S. 928, 345 U. S. 914.) III. The seizure of plaintiff’s devices was authorized by the Sanitary Code, whose provisions do not conflict either with State law or with State or Federal constitutional provisions. (Matter of Bakers Mut. Ins. Co. [Dept. of Health], 301 N. Y. 21; Matter of Investigation, County of Kings, 286 App. Div. 270, 309 N. Y. 1031; Matter of Kress & Co. v. Department of Health, 283 N. Y. 55; Heller v. Department of Health, 194 Misc. 96; People v. Lewis, 295 N. Y. 42; People v. Richter’s Jewelers, 265 App. Div. 767, 291 N. Y. 161; Agnello v. United States, 269 U. S. 20; Yakus v. United States, 321 U. S. 414.) IV. In defining the crime of misbranding, the Sanitary Code is sufficiently certain to meet the requirements of due process. (Fougera & Co. v. City of New York, 224 N. Y. 269; United States v. Kaadt, 171 F. 2d 600; Triangle Candy Co. v. United States, 144 F. 2d 195; United States v. Buffalo Pharmacal Co., 131 F. 2d 500; United States v. Dotterweich, 320 U. S. 277, 320 U. S. 815; United States v. Roma Macaroni Factory, 75 F. Supp. 663.)
   Per Curiam.

In March of 1955 two Inspectors of the Board of Health of the City of New York seized, pursuant to article 8 of the Sanitary Code of the City of New York, a number of plaintiff’s “Electro-Therapeutic Bracelets” together with all accompanying literature. The basis for the seizure was that all circulars, devices and placards were misbranded and, so, liable to be seized by the Board of Health as such. The seizure was accomplished under the claimed authority of section 135 of the Sanitary Code and was carried out without any prior notice to the plaintiff and without any kind of a hearing.

We construe section 135 of the. Sanitary Code as. requiring that any condemnation proceeding taken by defendants under the Sanitary Code accord with the procedure specified in a like case prosecuted under the Education Law (§ 6815). Until those safeguards afforded plaintiff by law are observed, we may not pass upon the basic question of whether the plaintiff’s bracelet was misbranded. The seizure here having been in violation of those procedural safeguards, the plaintiff is entitled to a return of its property. The defendants and other appropriate authorities, if any, are free, of course, to initiate any proper proceedings or prosecutions, if they so choose.

The judgment of the Appellate Division should be modified by affirming so much thereof as dismisses that part of plaintiff’s complaint by which it seeks an injunction against defendants and by reversing so much thereof as dismisses that part of plaintiff’s complaint by which it seeks a return of the property which has been seized by defendants.

Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke concur.

Judgment modified in accordance with the opinion herein and, as so modified, affirmed, without costs.  