5375. Adulteration of butter. IT. S. * * * v. 9 Barrels of Butter. Tried 
to the court and a jury. Verdict for Gtovex-nment. Decree of con- 
demnation   and   forfeiture.     Prod.act   ordered   released    on   bond.
(F. & D. No. 7893.    I. S. No. 2531-m.    S. No. B-763.)
On December 2, 1916, the United States attorney for the Southern District 
of New York, acting upon a report by the Secretary of Agriculture, filed in the 
District Court of the United States for said district a libel for the seizure and 
condemnation of 9 barrels, each containing 225 pounds of butter, remaining un- 
sold in the original unbroken packages at New York, N. Y., alleging that the 
article had been shipped on or about November 15, 1916, by the C. G. Anderson 
Produce Co., Knoxville, Tenn., and transported from the State of Tennessee 
into the State of New York, and charging adulteration in violation of the 
Food and Drugs Act.
Adulteration of the article was alleged in the libel for the reason that it con- 
sisted in whole or in part of a filthy, decomposed, and putrid animal substance, 
to wit, moldy, rancid, filthy, and decomposed butter; and for the further rea- 
son that floor sweepings and chicken feathers had been mixed and packed with 
the article so as to reduce, lower, and injuriously affect its quality and 
strength; and for the further reason that the article contained added poisonous 
and other added deleterious ingredients, to wit, floor sweepings and chicken 
feathers, which rendered it injurious to health.
On April 6, 1917, the case came on for trial before the court and a jury of 
one, in accordance with the stipulations of the parties, and after the presenta- 
tion of evidence the case was submitted to the jury, and a verdict was returned 
in favor of the Government by direction of the court, the claimants, Samuel K. 
Cohen and Jacob Cohen, doing business under the name of the New York Butter 
Packing Co., New York, N. Y., having admitted that the butter was sub- 
stantially in the condition charged in the libel. Thereupon the matter was 
taken under advisement by the court, and on April 9, 1917, a formal decision 
was rendered by the court upon the following statement of facts:
This is an action at law for the destruction of nine barrels of number two 
grade packing butter shipped from Nashville, Tennessee, to New York and con- 
signed to the claimant, New York Butter Packing Company. The butter was 
packed in nine barrels, stout and double-headed except two, which were covered 
on one end with burlap. When examined in New York they disclosed the pres- 
ence in substantial quantity of dirt, feathers, paper, aniline dyes which ran 
from the paper, the excrement of rats, and cheesy particles, as well as a sub- 
stantial volume of the butter gone rancid. The claimant depends for its defense 
upon two theories ; first, that the title to the butter had passed to it at Nashville, 
Tennessee, on or before the date of its delivery to the carrier, a fact which was 
conceded; second, that the butter was destined for retreatment by which most 
of the impurities were removed. This retreatment is known as, " ladling," and 
consists in dividing the butter into small portions, a pound or more in size, and 
in manually picking out with a trowel such parts as show dirty to the eye of 
the operator. The amount so removed varies generally from two to five per 
cent, but sometimes rises much higher. The butter thus cleansed is then put 
into a room at about 85° F., which makes it plastic and capable of being moulded 
into pats of proper size and homogeneous quality. It is then colored evenly and 
sold only to bakers. In baking the butter passes through a temperature of from 
350° to 500° F., under which most of the rancid oils are volatilized and driven 
off. Under the evidence as given it must be assumed that the butter so used by 
bakers is not deleterious to the public health.
DECISION OF THE COURT; HAND, I). J.: The first point of the claimant is 
met and answered by the case of Hipolite Egg Co. v. United States, 220 U. S. 45, 
and needs no other discussion. In that case the eggs had been shipped by Clark 
& Company to themselves and were in storage at the time in question. That 
case was stronger for the claimant than the case at bar.
The second point is in fact also decided by the same case, which was almost 
precisely like this in that aspect.   Doubts may arise where goods are shipped in
30475°—18 4
interstate commerce which may or may not be articles of food, as their ultimate 
destruction may determine, but this case does not raise them. By no chance 
can this butter be called anything but an article of food; by no chance can I 
avoid the conclusion that it was filthy and decomposed in part. As such it 
came within the terms of the statute even though it might be saved and re- 
claimed by being made clean and palatable. Questions of that sort arise under 
section ten and under that alone. Under that section I have the power to de- 
stroy, sell or redeliver to the owner under bond. The conditions of redelivery 
therefore become the important question in the case; I may deliver the goods 
to the owner upon condition that they " ladle " the butter, or that they otherwise 
treat it so as to secure the health of the community, in either case subject to 
a bond.
As to " ladling ", I shall not allow the butter to be so treated. Certainly some 
filth must remain, and while baking may remove any injury to health, the ques- 
tion is somewhat meagrely presented, and the claimant does not press its right 
to do so. There is, however, another and much more radical, method of cleans- 
ing such butter, known as " renovating ", which is as follows: The butter is 
melted to a fluid so that all solid matters fall to the bottom. It is then strained 
and blown into a spray, in which condition hot water is allowed to percolate 
through the butter oil. The water is then drawn off and an emulsion made 
with milk is then cooled into crystals, salted and packed in containers. As 
such it is sold for table butter and in many instances is unquestionably a useful 
article of food, and is permitted access to the markets, where it is not unlawful.
I shall allow this butter to be " renovated" by the process mentioned and 
after renovation the plaintiff shall have opportunity to examine it and if it 
will not pass it, to convince me that it is still filthy or decomposed, and should 
be destroyed. Therefore, the decree will be that the butter be destroyed, unless 
the claimant elects within five days to "renovate" the same, upon giving suit- 
able security as hereinafter described. If it does so decide, the butter shall be 
delivered to said claimant and after renovation to be completed within a suit- 
able time shall be again submitted to the plaintiff for examination. If the 
plaintiff at that time is not satisfied with its purity, it may apply to this court 
for a writ of destruction notwithstanding delivery to the claimant. The claimant 
shall give a bond in the sum of two thousand dollars conditioned that it will 
renovate said butter within a, time to be fixed and will submit the product to 
the plaintiff for inspection; further conditioned that it will satisfy the court 
of the identity of the renovated butter with the subject of this action, and will 
hold such renovated butter subject to any writ of destruction to be hereafter 
issued.
If a writ of error is taken, the claimant's option to renovate may be exercised 
notwithstanding the same, but the bond must extend to the determination of 
the appeal, in which case no writ of destruction will issue until that time.
The claimant will bear the costs under section ten.
Thereafter, on April 20, 1917, a formal decree of condemnation and for- 
feiture was entered in accordance with the foregoing decision, and it was or- 
dered by the court that the United States recover of salol claimants the costs 
of the proceedings and that the product might be delivered to said claimants to 
be subjected to the process known as renovation, as defined in section 4 of the 
act of May 9, 1902, upon the execution of a bond in the sum of $2,000, in con- 
formity with section 10 of the Food and Drugs Act.
OABL VEOOMAW, Acting Secretary of Agriculture.