Marian Creamery Corp. v. Noyes

Appellate Division of the Supreme Court of New York

Marian Creamery Corp. v. Noyes

254 A.D. 618, 3 N.Y.S.2d 5, 1938 N.Y. App. Div. LEXIS 6752

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 23, 1938

StatusPublished

This text of 254 A.D. 618 (Marian Creamery Corp. v. Noyes) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Marian Creamery Corp. v. Noyes, 254 A.D. 618, 3 N.Y.S.2d 5, 1938 N.Y. App. Div. LEXIS 6752 (N.Y. Ct. App. 1938).

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Opinion

Appeal from an order granted at a Special Term of the Supreme Court entered in Albany county whereby the application of appellants to strike out an affidavit attached to the petition was denied. The petition seeks a review of the determination of the Commissioner of Agriculture which canceled petitioner’s milk dealer’s license. The cancellation was upon the ground that petitioner has been guilty of price cutting and thereby has committed an act injurious to public health, welfare, trade and commerce in demoralization of the price structure of pure milk sold in Buffalo to such an extent as to interfere with the ample supply thereof for residents of the Buffalo area. The affidavit complained of which accompanies the petition sets forth that petitioner is being furnished milk by the Wet-miller Dairy at a price both satisfactory to it and petitioner; that there is plenty of milk supplied for the Buffalo area and that the Wetmiller Dairy could supply more milk than is at present being supplied by it for the same price for which it has furnished milk to the petitioner. In so far as a review of the determination of the Commissioner is involved the affidavit in question is extrinsic to the record upon which the Commissioner based his determination. In so far, however, as petitioner may be entitled to relief in the nature of mandamus to compel the Commissioner to reinstate petitioner’s license, the affidavit may be material, that is, if the petitioner is entitled to a license which the Commissioner refused to grant, allegations of fact showing why the action of the Commissioner is illegal and why he should be compelled to issue a license are pertinent. In either event appellants would seem to have no legal reason to object to the inclusion of the affidavit. Order unanimously affirmed, with ten dollars costs and disbursements. Present — Hill, P. J., Rhodes, MeHamee, Bliss and Heffernan, JJ.

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Appeal from an order granted at a Special Term of the Supreme Court entered in Albany county whereby the application of appellants to strike out an affidavit attached to the petition was denied. The petition seeks a review of the determination of the Commissioner of Agriculture which canceled petitioner’s milk dealer’s license. The cancellation was upon the ground that petitioner has been guilty of price cutting and thereby has committed an act injurious to public health, welfare, trade and commerce in demoralization of the price structure of pure milk sold in Buffalo to such an extent as to interfere with the ample supply thereof for residents of the Buffalo area. The affidavit complained of which accompanies the petition sets forth that petitioner is being furnished milk by the Wet-miller Dairy at a price both satisfactory to it and petitioner; that there is plenty of milk supplied for the Buffalo area and that the Wetmiller Dairy could supply more milk than is at present being supplied by it for the same price for which it has furnished milk to the petitioner. In so far as a review of the determination of the Commissioner is involved the affidavit in question is extrinsic to the record upon which the Commissioner based his determination. In so far, however, as petitioner may be entitled to relief in the nature of mandamus to compel the Commissioner to reinstate petitioner’s license, the affidavit may be material, that is, if the petitioner is entitled to a license which the Commissioner refused to grant, allegations of fact showing why the action of the Commissioner is illegal and why he should be compelled to issue a license are pertinent. In either event appellants would seem to have no legal reason to object to the inclusion of the affidavit. Order unanimously affirmed, with ten dollars costs and disbursements. Present — Hill, P. J., Rhodes, MeHamee, Bliss and Heffernan, JJ.

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Bluebook (online)

254 A.D. 618, 3 N.Y.S.2d 5, 1938 N.Y. App. Div. LEXIS 6752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marian-creamery-corp-v-noyes-nyappdiv-1938.