Bullis v. Du Mond

274 A.D. 951, 83 N.Y.S.2d 452, 1948 N.Y. App. Div. LEXIS 4222

Opinion

The Commissioner of Agriculture and Markets has appealed from an order of the St. Lawrence Special Term of the Supreme Court, which denied his motion as a matter of 'law. The petition shows that Raquette Valley Dairies, Inc., is a' milk dealer licensed by the commissioner; that petitioner is a licensed milk dealer maintaining a pasteurization plant at Colton, New York, and making deliveries of milk in Colton and South Colton and that he has been engaged in the sale of milk and milk products in such towns since 1933. On October 31, 1947, petitioner was notified by the Department of Agriculture and Markets that a hearing was to be held on November 12, 1947, in the office of the Division of Milk Control on application of Raquette Valley Dairies, Inc., to permit it to extend its license to various new localities including Colton and South Colton. At the time of hearing an officer of Raquette Valley Dairies, Inc., appeared and testified that his company desired to extend its license to the new localities. Petitioner appeared in opposition to the application and testified that he was a milk dealer and financially equipped to serve the territories of Colton and South Colton with an adequate and approved source of supply of milk and that if the extension were granted he would be unable to continue to operate his business. Subsequently and on December 17, 1947, petitioner was notified that the application of Raquette Valley Dairies, Inc., was granted. Thereupon petitioner instituted this proceeding under article 78 of the Civil Practice Act to review the determination. The commissioner filed no answer to the petition but moved to dismiss the proceeding on the sole ground that petitioner has no legal ground to maintain it. The Special Term overruled this contention and held in effect that petitioner is an aggrieved party and that he should have a hearing on the merits. We approve of that determination. Order unanimously affirmed, with $25 costs and disbursements. Present — Hill, P. J., Heffernan, Brewster, Russell and Deyo, JJ.