| S.D.N.Y. | Aug 12, 1947
Libellant’s motion to vacate, as improper, claimant’s notice to take the deposition of the Commissioner of Food and Drug Administration etc., dated December 9, 1946, is denied. Section 304(b), 21 U.S. C.A. § 334, of the Food, Drug and Cosmetic Act, applies to the seizure of property by process in rem; thereafter proceeding in the action, which is civil in its nature, is governed by the Rules of Civil Procedure. Three and Forty-Four Hundred Cans of Frozen Egg Products v. United States, 226 U.S. 172" date_filed="1912-12-02" court="SCOTUS" case_name="Four Hundred & Forty-Three Cans of Frozen Egg Product v. United States">226 U.S. 172, 179, 33 S.Ct. 50, 57 L.Ed. 174; Eureka Productions, Inc. v. Mulligan, 2 Cir., 108 F.2d 760" date_filed="1940-01-08" court="2d Cir." case_name="Eureka Productions, Inc. v. Mulligan">108 F.2d 760, 761. The motion is to vacate the notice in toto, not to limit it. If upon the examination improper matters are inquired into, libellant has its remedy under Rule 37, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Settle order on notice.