New York State Guernsey Breeders Co-Operative, Inc. v. Noyes

Appellate Division of the Supreme Court of New York

New York State Guernsey Breeders Co-Operative, Inc. v. Noyes

257 A.D. 877, 11 N.Y.S.2d 909, 1939 N.Y. App. Div. LEXIS 8250

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

DecidedMay 10, 1939

StatusPublished

Cited by1 cases

This text of 257 A.D. 877 (New York State Guernsey Breeders Co-Operative, Inc. 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.

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New York State Guernsey Breeders Co-Operative, Inc. v. Noyes, 257 A.D. 877, 11 N.Y.S.2d 909, 1939 N.Y. App. Div. LEXIS 8250 (N.Y. Ct. App. 1939).

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Opinion

Appeal from an order denying the motion of the Commissioner of Agriculture to dismiss a proceeding brought under article 78 of the Civil Practice Act and requiring that he serve a copy of his answer and return. The determination of the Commissioner is designated as Official Order No. 127 under chapter 383 of the Laws of 1937, now sections 258-k to 258-m of the Agriculture and Markets Law, commonly called [878]*878the “ Rogers-AJlen Law.” That act has been found unconstitutional at the Special Term. The Commissioner has appealed from that decision directly to the Court of Appeals, as only a constitutional question was involved. This petitioner asserts illegality of the order on grounds other than constitutionality, and its right to a review under article 78 of the Civil Practice Act should the law be held constitutional. While this court would not deem it proper to take this case up for decision on the merits until the Court of Appeals has passed upon the constitutionality of the act in the case now before it, that fact does not excuse the Commissioner from filing his answer and return within the time required by the order appealed from. Order affirmed, with costs. Hill, P. J., McNamee, Crapser and Bliss, JJ., concur. [Special Term opinion herein is not reported. See, also, Noyes v. Erie & Wyoming Farmers Co-operative Corp., 170 Misc. 42; revd., 281 N. Y. 187.]

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Appeal from an order denying the motion of the Commissioner of Agriculture to dismiss a proceeding brought under article 78 of the Civil Practice Act and requiring that he serve a copy of his answer and return. The determination of the Commissioner is designated as Official Order No. 127 under chapter 383 of the Laws of 1937, now sections 258-k to 258-m of the Agriculture and Markets Law, commonly called [878]*878the “ Rogers-AJlen Law.” That act has been found unconstitutional at the Special Term. The Commissioner has appealed from that decision directly to the Court of Appeals, as only a constitutional question was involved. This petitioner asserts illegality of the order on grounds other than constitutionality, and its right to a review under article 78 of the Civil Practice Act should the law be held constitutional. While this court would not deem it proper to take this case up for decision on the merits until the Court of Appeals has passed upon the constitutionality of the act in the case now before it, that fact does not excuse the Commissioner from filing his answer and return within the time required by the order appealed from. Order affirmed, with costs. Hill, P. J., McNamee, Crapser and Bliss, JJ., concur. [Special Term opinion herein is not reported. See, also, Noyes v. Erie & Wyoming Farmers Co-operative Corp., 170 Misc. 42; revd., 281 N. Y. 187.]

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257 A.D. 877, 11 N.Y.S.2d 909, 1939 N.Y. App. Div. LEXIS 8250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-york-state-guernsey-breeders-co-operative-inc-v-noyes-nyappdiv-1939.

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