
    Metropolitan Milk and Cream Company, Appellant, v. The City of New York and The Department of Health of the City of New York, Respondents.
    First Department,
    May 11, 1906.
    Municipal corporation—licenses to sell milk in city of Mew York are revocable.
    Licenses to sell milk issued by tbe department of health of the city of Mew Yoi-k may be revoked by said department when the licensee, -after a hearing, has ■ been- found guilty of selling adulterated and unwholesome milk in violation of the Sanitary Code of said city.
    
      The department is not restricted to a criminal prosecution oí a licensee, selling . unwholesome milk.
    Moreover, a provision in such license that the same is revocable is binding upon the licensee.
    ' , Appeal by the plaintiff, the Metropolitan Milk and Cream Company, from so much of an interlocutory judgment of the Supreme Court in part in favor of the plaintiff, entered in the office of the clerk of the county of New'York on the 28th day of February, 1906, upon the decision of the court rendered after a trial at the New York Special. Term, as overrules the plaintiff’s demurrer to one of the separate defenses' contained in the defendants’ answer.
    
      John J. Lenehan, for the appellant.
    
      Theodore Connoly, for the respondents.
   Ingraham, J.:

The action was brought to recover $30,000 damages sustained by the plaintiff by the revocation by the board' of health df the city of New York of certain permits issued by the said board under which the plaintiff was authorized to sell fresh and condensed milk in the city of New York. The plaintiff was a domestic corporation and engaged in selling milk and cream in the city of New York. The complaint alleges that the department of .health- is a department of the city of New York, organized under the charter of the city of New York (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466) and the several acts amendatory thereof and supplementary thereto; that prior to January 1,1897, the board of health of the former city óf New York issued to the plaintiff seven permits or licenses to sell milk in the city of New York, dated March 10, 1896; that thereafter the present board' of health, organized under the charter of 1901, issued to the plaintiff three additional permits to sell milk in the city of New York, dated May 7, 1902, and June 10, 1903; that the sale of milk by the plaintiff in the city of New York without a permit from the board of health was, after the 14th of December, 1904,'a misdemeanor; that on the 14th day of -December, 1904, the board of health adopted a resolution wherein and whereby they directed all said ten permits or licenses to sell milk theretofore issued to the plaintiff, and under which the plaintiff was carrying on its said business, to be forthwith annulled and revoked; that the action of the board was unjust, arbitrary,, unlawful and illegal and without just cause, and that the said board was without any power, authority or warrant in law to revoke said licenses. The form of the permits was set forth in the complaint as follows: Metropolitan Milk and Cream Company is hereby authorized to- sell milk, fresh and condensed, at , Borough of Manhattan, under the laws, rules and regulations of the Board of Health, of the Department of Health of .the City of New York. This permit is"not transferable to any person or location other 'than above, and must be kept posted at all times in a conspicuous place in the store, and is revokable at the pleasure of the Board; ” that the plaintiff’s good will, trade and business were at the time of said revocation, of the value of $30,000; that in consequence' of said revocation of the said licenses or permits the plaintiff was prevented from continuing or carrying On its said business, and said business thereby and thereupon was forthwith wholly and instantly terminated and entirely destroyed, all to fhe plaintiff’s damage in the sum of $30,000.

The- defendants served separate answers, which set up as a separate defense that by virtue of the laws of the State of New York and the Sanitary Code of the city of New York the defendant the Department of Health of the City of New York had authority and power to prevent the plaintiff from bringing into the city of New York, or keeping or selling therein, unwholesome or adulterated milk, or milk which had been watered, or milk which had been in any respect adulterated, reduced' or changed by the addition of water or any other substance; that prior to the 14th day of Decern- - her,. 1904, the department of health of the city of New York, upon investigation and inquiry, discovered that the plaintiff was operating a creamery- in the county of .Orange, in the State of New York, which creamery and appurtenances were kept and maintained by the plaintiff in a filthy, unwholesome and unsanitary condition, and from the said creamery the plaintiff was shipping and sending to the city of New York,, to be sold to its citizens, milk which had •been watered, and which had been adulterated and changed by different substances, and that the plaintiff had been using in such milk preservatives, so called, and coloring matter,- and was also shipping and sending to New York, to be used by its citizens, skim milk mixed with water, labeled Buttermilk,” whereupon the department of health of the city- of Mew York, after notice to the plaintiff and after a hearing upon all the facts, revoked the license or licenses of the plaintiff to sell milk in the city of Mew York, as it had'a right to do, and as it was its duty to do,.and. not otherwise. To these separate defenses demurrers were interposed by the plaintiff, which were overruled.' ■ ■ • ■ ,

The learned counsel for the defendants do not attack the sufficiency of thé Complaint, although it is somewhat difficult to see how any act .of the .board of health, acting under an authority conferred by the State tó regulate the sale of impure and unwholesome milk in the city of Mew York, can impose an obligation upon the municipality. As this point, however, is. not taken by the defendant, -it will hot be considered. The first seven permits'were issued on March 10, 1896, under the Consolidation Act (Laws of 1882, chap. 410, as amd.). By section 34 of that act the board of health was created a'department of the said city. Section 575 provides that the Sanitary Code “ adopte A and .declared, as such at meeting of .the board of health of the health department of the city of Mew York, held in the city on the second day of June, one thousand eight hundred and seventy-three, as amended in accordance with law, is hereby declared to be binding and in force in said city.’’ Section 576 provides that the board of health “ shall’ cause tó be enforced the provisions of its Sanitary Code.” In People ex rel. Lieberman v. Vandecarr (175. N. Y. 440): it was held that section 66. of the Sanitary Code, which reads, “ Mo milk shall be received, held, kept, offered for sale Or. delivered in the city of Mew York without a permit: in writing from the.board of health and subject to the conditions thereof,” was valid;. that it was- lawful for. the health • authorities in the city of "Mew York to require the relator to obtain'a permit under section 66 of the Sanitary Code in order to receive, hold, offer for sale and deliver milk, and failing so to do to arrest and punish him; that the vesting of powers more or less arbitrary in various officials and boards is necessary if the..work of prevention and regulation is to ward off fevers, pestilence and -the many other ills that constantly menace great centers of. population. The board of health, thus having power to issue permitsauthorizing a person to carry on the business Of dealing in milk, in the city of New York, this power was continued by the subsequent charters of the city of New York. By sections 96 and 1167 of the present charter (Laws of 1901, chap. 466) the board of health is constituted. Section 1172 of the charter, as amended by chapter 628 of the Laws of 1904, provides that “ The Sanitary Code which shall be in force in the city of New York the first day of January, •nineteen hundred and two, and all existing provisions of law fixing penalties for violations of said code are hereby declared to be binding and'in force in the city of New York, and shall continue to be so binding and in force, except as the same may, from time to time, be revised, altered, amended or annulled, as herein provided.” By section 1169 it was made the duty of the board “ to enforce all laws of this State, applicable in said district, to the preservation of human life, or to the care, promotion or protection of health; and said board may exercise the authority given by' said laws to enable it to discharge the duty hereby imposed; and this section is intended to include all laws relative to cleanliness, and to use or sale of poisonous, unwholesome, deleterious or adulterated drugs, medicines or food, • * * *. The board of health shall use all reasonable' means for ascertaining the existence and cause of disease or peril to life or health, and for averting the same, throughout said city.” The board being charged with the duty of protecting the health of the inhabitants and preventing the.sale of impure or adulterated food, ascertained that the plaintiff, acting under the permits which it had issued, ivas engaged in selling impure and adulterated milk. The board gave to the plaintiff notice of these charges, and after a hearing it revoked the permits, and to sustain the contention of the plaintiff we must hold that such permit thereby becomes irrevocable and authorizes -the person to whom it was granted to continue forever to sell milk, although the conditions under which the permit was issued were continually violated, the provisions of the Sanitary .Code in relation to milk sold disregarded, and that a person acting under a permit from the board of health is selling to the inhabitants of the city of New York poisonous and impure articles for food, endangering the public health. The sole authority that the health board would have, if this contention were correct, would be to prosecute the person selling the poisonous article in the shape of milk, fine him, and in the meantime such person could go on poisoning the people under a permit or license fi’om the health .authorities, a proposition which is so unreasonable that a mere statement is sufficient, to refute it. There is nothing' in either the Penal Code or the charter that makes such a permit irrevocable, The permit itself provides that it is revocable at the pleasure of the board, and the plaintiff accepted it with t’hat. condition ■; there' is nothing ■unreasonable in this condition ; and' irrespective of the general-power of the board of health ■ to revoke a permit which is being abused and under which the person accepting it and using it. is persistently violating the law, it. is certkinly not an unreasonable condition to insert into such a permit a provision that it is revocable by the board that issues it. To hold that a permit once granted is irrevocable would be -to- totally defeat the object of the statute in requiring such a permit before a person ¡should engage in the business of supplying to the inhabitants of a city food. We think it entirely clear that .the court below was justified in ovei'ruling. the demurrer, and the judgment appealed from is , affirmed, with costs, with leave to the plaintiff to withdraw the demurrer within twenty .days on payment of costs in this court and in the court below..

O’Brien, P, J., Patterson, Laughlin and Clarke, JJ., concurred.

Judgment affirmed, with Costs, with leave to. plaintiff to withdraw demurrer on payment of costs in this .court and in the court below. Order filed.  