
    The People of the State of New York ex rel. George Lodes, Appellant, v. The Department of Health of the City of New York, Respondent.
    Second Department,
    January 11, 1907.
    Foods — restriction of sale of milk by board of health — when certiorari does not lie police power -r constitutional right to sell milk.
    The common-law writ of certiorari lies only to review acts of a judicial character, aud in the absence of a statute, expressj.y authorizing it, the writ will not issue to review the action of the hoard of health of the city of New York in preventing the relator from carrying on the business of selling milk.
    The act of said board Of health in prohibiting the selling of milk is not judir cial in its nature,, although it. may involve the exercise .of judgment and discretion.
    But the right to sell milk is a constitutional right which can- be restricted only as , an exercise of the police power on the ground that public health is imperiled.
    
      It seems, that if such board of health interferes with the business of selling, milk . when the public health is not thereby imperiled, it incurs the- same liabilities as an individual who interferes with any lawful business.
    Appeal by the relator, George Lodes, from an order of the Supreme Court,.made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of February, 1906, denying the relator’s motion for a writ of certiorari to review the action of the.respondent in revoking certain permits theretofore .issued to the relator allowing him to traffic in, milk in the city of New York.
    
      Albert R. Moore, for the appellant.
    
      James D. Bell [Edward H. Wilson and John J. Delany with him on the brief], for the respondent.
    Order affirmed, with ten dollars costs and disbursements, on the opinion of Mr.. Justice Burr, at Special Term.
    Hirschberg, P. J., Woodward, Jenks and Hooker, JJ., concurred ; Gaynor, J., concurred in result, on the ground that .the. board had no power to revoke the license.
   The following is the opinion of Mr. Justice Burr delivered at Special Term:

Burr, J.:

It is conceded that there is no statute expressly authorizing the issue of a writ of certiorari " to review the action of the' board of health in preventing relator from carrying on the business of selling milk in the city of New York. In the absence of such statutory authority, unless entitled to a common-law writ, he is not entitled to this remedy for the wrong which may have been done to him. (Code Civ. Proc. § 2120.) A common-law writ is only available to review an act judicial in its character. .The fact that a public board or agent exercises judgment and discretion in the performance of duties does not necessarily make the action judicial in character. (People ex rel. Second Avenue R. R. Co. v. Board Comrs., etc., of N. Y., 97 N. Y. 37; People ex rel. Trustees v. Board of Supervisors, 131 id. 468.)

A. judicial proceeding implies a hearing as a matter of right to the person affected thereby. There is no provision of law giving a party a right to a judicial hearing before the board of health. It often acts summarily upon the evidence of the senses of its members, or upon ex parte statements of others. Its summary deter-' mination that the relator shall not vend milk in the city of New York is not a judicial determination, although it may involve the exercise of judgment and discretion. (People ex rel. Copcutt v. Board of Health, 140 N. Y. 1; People ex rel. Savage v. Board of Health, 33 Barb. 344, cited with approval in People ex rel. Trustees v. Board of Supervisors, 131 N. Y. 468.)

The relator is not without remedy. The right to carry on the business of selling milk is a constitutional one. This right can only be interfered with in the exercise of the police power of the State, because in the manner of his conduct, of the business or the circumstances surrounding it, the public health is imperilled. If as a matter of fact the public" health-is not thereby imperilled, the sumhaary determination of the board of health does not make it so, and its interference with his .business would subject the persons constituting the board to the same perils and liabilities as an individual who interfered with a lawful business. (People ex rel. Copcutt v. Board of Health, supra, 9.) In addition to the remedies to the party aggrieved pointed out in that case it may be that if the relator established a clear legal right to carry on the business without interference, mandamus would lie to compel the board to issue the permits which by the'Sanitary Code it has. made a condition precedent to the conduct of the. sainé. /

The application for a writ of certiorari is denied, without costs.  