Opinion
January 31, 1942.
Neile F. Towner, of Albany, N.Y., for plaintiff.
Ralph L. Emmons, U.S. Atty., of Syracuse, N.Y., John S.L. Yost, and Charles C. Pearce, Sp. Assts. to the Atty. Gen., for defendant.
Action by Sauquoit Valley Farmers Cooperative, Incorporated, against Claude R. Wickard, Secretary of Agriculture. On plaintiff's motion for judgment on the pleadings and on defendant's motion for judgment on the pleadings and for summary judgment.
Judgment for defendant in accordance with opinion.
Plaintiff moves for judgment on the pleadings under Rule 12(c), Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
Defendant moves (1) for judgment on the pleadings and (2) for summary judgment under Rule 56.
Section 927.3(b)(6) of Order 27, promulgated by the Secretary of Agriculture pursuant to the Agricultural Adjustment Act of 1933, 48 Stat. 31, 7 U.S.C.A. § 601 et seq., states explicitly what shall constitute class III-B milk. Cream, in order to be so classified, must be kept in a licensed warehouse for prescribed periods at prescribed temperatures "as shown by charts of a recording thermometer". The section definitely states the kind of evidence necessary to show temperatures. Parties cannot obtain the benefits of this classification except by strict compliance with all the requirements of the section. Proof of temperatures, in manner other than as prescribed, is not compliance. Plaintiff's failure to store the cream where the temperatures could be shown by the chart of a recording thermometer precludes classification under the section.
Plaintiff's motion for judgment is denied.
Defendant's motions are considered together. Palmer v. Palmer, D.C., 31 F. Supp. 861.
Judgment in favor of defendant is granted.