In this action brought by the manufacturer of a medical device known as an electro-therapeutic bracelet against the City of New Tork and its Department of Health for an injunction against defendants ’ interference with the advertising, manufacture, distribution and sale of the bracelets and for an order directing the return of certain bracelets and advertising matter seized by defendants, defendants appeal from a judgment, without a jury, in favor of plaintiff for all relief prayed for in the complaint.
It is acknowledged of record that, without notice or hearing, the defendants seized at the office of the plaintiff over 100 of the aforesaid bracelets and more than 2,000 pieces of literature, and, further, that defendants have interfered with the advertising, sale, and distribution of the bracelets. In defense, defendants charge that the labeling of bracelets is ‘ ‘ false and misleading ” within the meaning of section 116 (subd. 2, par. [a]) of the Sanitary Code, and that in the circumstances the seizure was authorized by section 135 of that code. The trial court found that there was no misbranding under section 116 (subd. 2, par. [a]).
I believe that the action of defendants in seizing and condemning without notice or hearing must be proscribed and relief accorded to plaintiff without reference to whether plaintiff has falsely labeled its product. It has been said that “ the right to be heard before being condemned to suffer grievous loss of *301any kind * * * is a principle basic to our society.” (Anti-Fascist Committee v. McGrath, 341 U. S. 123, 168.) This injunction may be diregarded only in those rare and isolated instances where the danger threatened is so great and imminent as to necessitate seizure or destruction without hearing. (See Yakus v. United States, 321 U. S. 414, 442-443.) But no such disastrous prospect was the basis for the summary action here taken. Admittedly the sole immediate risk caused by plaintiff’s bracelets was that wearers might be induced by plaintiff’s claims to delay competent medical treatment for the condition such wearers hoped to alleviate by means of the plaintiff’s bracelets. In this view not only the exceptional but every article allegedly mislabeled as to its ameliorative or curative potential could be seized and destroyed summarily. We believe the risk disproportionate to the summary nature of the action taken by defendants.
The applicable legislation does not authorize the extraordinary procedure employed by defendants. Section 135 of the Sanitary Code permits the seizure and confiscation of an article where an inspector of the Department of Health finds “ there is probable cause to believe that the article is * * * misbranded ”. The section fails, however, to define the procedure that is to be followed in making a seizure. We do not think that the section should be construed as authorizing seizure without due process for to do so would raise a serious question of constitutionality. Every presumption favors the validity and constitutionality of a statute (Fearon v. Treanor, 272 N. Y. 268, 274). Applying that principle here, I think it may fairly be said that in enacting this section authorizing seizure of a misbranded article, it was intended that any such seizure would be made in a lawful manner and in accordance with recognized concepts of notice and due process.
The Sanitary Code, as indicated, is silent with respect to the procedure to be followed in seizing a misbranded article. If it be construed as authorizing seizure in the manner employed by defendants, I might be confronted with problems of conflict between the local legislation and the corresponding provisions of the State law which explicitly and clearly outline the steps to be taken where an article is seized.
Article 137 of the Education Law, establishing the New York State Board of Pharmacy, is likewise concerned with mislabeling of devices such as those of the plaintiff. In language almost identical with that in section 116 (subd. 2, par. [a]) of the Sanitary Code, a device is “ deemed to be misbranded ” where “ its labeling is false or misleading in any particular.” (Educa*302tion Law, § 6808, subd. 2, par. a.) Any device which is so misbranded “may be seized on petition, or complaint * * * and condemned in the supreme court”. (Education Law, § 6815, subd. 1.) When the adulteration or misbranding is so great “ as to be dangerous to health,” seizure or quarantine by order of the secretary of the Pharmacy Board is allowed, but ‘‘ a petition, or complaint, shall be promptly filed for condemnation thereof.” (Education Law, § 6815, subd. 1, par. b, cl. [3].) It is thereafter provided that ‘‘ in cases under this section ’ ’ the procedure is to “ conform, as nearly as may be, to the procedure in attachment. On demand of either party, any issue of fact joined in any such case shall be tried by jury.” (Education Law, § 6815, subd. 2.)
However great the deference owing to the legislative status of the provisions of the Sanitary Code (Matter of Bakers Mut. Ins. Co., 301 N. Y. 21), they may not conflict with the “ laws of this state ” (New York City Charter, § 558) or with the constitutional requirements of due process. (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, affd. 256 N. Y. 619.)
A city ordinance and a State statute covering the same field should be in harmony, for the ordinance must follow the spirit of the higher statute (Marengo v. Rowland, 263 Ill. 531). And if, as stated, there be a conflict between the two, then the State law must govern (New York City Charter, § 558). That section which relates to the Sanitary Code empowers the Board of Health to confer powers on the department ‘ ‘ not inconsistent with the constitution or laws of this state ”. It may be assumed, therefore, that in enacting section 135 of the Sanitary Code it was the intention of the legislators to act consistently with the laws of this State. It would seem to follow that, where, as here, the State law requires certain procedural steps either before or after seizure, i.e., a complaint or petition, a hearing and the right to a jury trial if demanded, the same requirements should, and apparently were intended to, apply to any seizure under section 135 of the Sanitary Code.
The plaintiff’s right to notice and hearing before judgment was not rendered academic by the institution of these proceedings and the resultant trial on the merits. Defendants having seized plaintiff’s property without process or hearing, plaintiff followed the only course it deemed available by instituting this action in equity for injunctive relief. By so doing, it cannot be said that plaintiff waived its right to a jury trial. In other words, a fundamental right guaranteed by law—in this instance *303the right to a jury trial, in a proceeding initiated by defendants — is not destroyed by plaintiff’s attempt to assert its rights in the present action. It is wrong doctrine that rights are lost by the mere fact of their assertion. If the victim of an unauthorized and unwarranted summary seizure is confronted with the Hobson’s choice of not seeking relief or exonerating the impropriety of the procedure by seeking relief, there is no effective deterrent to such seizure.
The appellant urges review and determination of the issue whether plaintiff mislabeled even if the seizure was improper, arguing that such error can be cured by the return of the seized matter without foreclosing adjudication on the merits. But, as indicated, in a proceeding under section 135 or a criminal prosecution for violation of the Sanitary Code (see New York City Charter, § 558, subd. d), the plaintiff here would be entitled to the procedural advantages and safeguards which we accord those from whom we would take valuable rights or property. The action in equity to which plaintiff here was relegated was no adequate substitute therefor.
Accordingly, we may not in this proceeding, without those safeguards granted plaintiff by law, pass upon the basic question as to whether the article was misbranded. We do not reach or pass upon this phase of the trial court’s ruling. It is our view, however, that the learned Referee erred in holding that a false and misleading claim as to a product’s therapeutic effect is not actionable. In reaching that conclusion, the Referee failed to give due consideration to the Federal cases decided subsequent to the 1938 Federal Act (U. S. Code, tit. 21, § 301 et seq.) which indicate quite clearly that false claims as to a product’s therapeutic value are actionable.
I conclude, therefore, that the injunctive relief—except the direction to return plaintiff’s property—should not have been granted. Nor should the city be enjoined from taking further action provided it be lawful.
The judgment should be modified to the extent of denying all relief except that the property be returned. No costs. This disposition is without prejudice to such other and proper proceedings or prosecution as the defendants or other appropriate agency may choose to initiate and, as thus modified, the judgment should be affirmed.