Kotcher v. Carey

3 A.D.2d 957, 162 N.Y.S.2d 708, 1957 N.Y. App. Div. LEXIS 5568

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1957
• Status: Published

Opinion

Proceeding under article 78 of the Civil Practice Act (transferred to this court by an order of the Supreme Court at Special Term, entered in Albany County), to review a determination of the Commissioner of Agriculture and Markets denying petitioners’ application for a milk-dealer’s license. Petitioners’ application was for a milk-dealer’s license to sell milk in six areas of Suffolk County. The commissioner denied the application on the ground that the markets proposed to be served by the applicants were adequately served, that the issuance of the license would tend to destructive competition, and would not be in the public interest. A full and complete hearing was held covering a total of five days. It was a fair hearing in which no substantial error was committed. The only issue presented to this court is whether the evidence at that hearing sustains the findings of the commissioner by a preponderance of the evidence. (Agriculture and Markets Law, § 258-e.) Petitioners state that they intend to sell a better quality milk, produced locally, and of a higher butter fat content. It appears from, the record that all grades of milk were available in the area and, of course, the quality of all milk sold is closely guarded by health regulations and inspections. There is ample evidence in the record that the markets were adequately served in a manner satisfactory to customers. There is evidence that numerous dealers already serving the area were operating at less than full capacity and that any new competition would result in losses to them. The respondent commissioner is the trier of the facts, and the record sustains his findings by a preponderance of evidence. Determination unanimously confirmed, with $50 costs. Present — Poster, P. J., Bergan, Coon, Halpern and Gibson, JJ.