
    In the Matter of the Application of Highland Farms, Inc., Petitioner, Appellant, against Peter G. Ten Eyck, Commissioner of the Department of Agriculture and Markets of the State of New York, Respondent.
   This is an appeal by Highland Farms, Inc., petitioner, from an order of the Special Term of the Supreme Court, entered in the office of the clerk of the county of Albany on the 31st day of August, 1936, denying petitioner’s motion to strike from the defendant’s return to an order of certiorari certain alleged findings of fact dated July 24, 1936. On May 21, 1936, the defendant, Commissioner of the Department of Agriculture and Markets in the State of New York, made an order denying the application of Highland Farms, Inc., for a renewal of its milk dealer’s license. On July 3, 1936, an order of certiorari was granted by the Supreme Court directing the Commissioner to make return of his proceedings with relation to such order. On August 4, 1936, such return was made by the Commissioner and when so made contained findings of fact dated July 24, 1936. Petitioner then moved before the Special Term for an order striking these findings from the return. It is from the order denying this motion that this appeal is taken. The Commissioner frankly concedes that the reason for the making of the findings of fact and the inclusion thereof in the return after his determination and order denying petitioner’s application for a renewal of its milk dealer’s license was the decision of the Court of Appeals in Matter of Elite Dairy Products v. Ten Eyck (271 N. Y. 488), which was handed down on July 8, 1936. After the decision the Commissioner made the findings in the case at bar and then included them in the return. Order reversed, on the law, on the authority of Matter of Elite Dairy Products, Inc., v. Ten Eyck (271 N. Y. 488), with ten dollars costs and disbursements, and motion granted, with ten dollars costs. HUI, P. J., McNamee, Bliss and Heflieman, JJ., concur; Rhodes, J., dissents.  