In re Dellwood Dairy Co.

263 A.D. 923, 32 N.Y.S.2d 411, 1942 N.Y. App. Div. LEXIS 7382

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 1942
• Status: Published

Opinion

This proceeding was instituted pursuant to article 78 of the Civil Practice Act and comes to this court upon an order of Special Term transferring it here. The controversy arises by reason of the respondent Commissioner’s denial of an application made by the corporate petitioner for an extension of its milk dealer’s license to permit delivery and sale of milk in certain named places. There was a hearing and evidence was taken. The Commissioner has found that during the year 1937 the applicant operated a total of from 116 to 122 milk routes handling a total of 755,528 quarts to 1,001,052 quarts. During the year 1940 the applicant operated 104 to 112 routes handling a total of from 704,608 quarts to 901,913 quarts. There has been a shift in the milk business so that less milk is sold to consumers on retail routes and more is sold to stores. There has also been an increase in the number of routes operated by single route operators. The petitioner’s loss of business stands undisputed on this record; neither competitive loss nor the hazards of inefficient operation is, standing alone, sufficient ground for the extension of a milk dealer’s license in the absence-of positive showing that the extension, if granted, would not tend to destroy an already adequately served market and would be in the public interest. The Commissioner has properly found upon the evidence before him that the granting of this application would have a tendency to destructive competition and that it would not be in the public interest because it would introduce destructive competition into a market already properly served. Determination unanimously confirmed, with fifty dollars costs and disbursements. Present — Hill, P. J., Crapser, Heffernan, Schenck and Foster, JJ.