
    In the Matter of the Application of Marian Creamery Corp., Respondent, against Holton V. Noyes, as Commissioner of Agriculture & Markets of the State of New York, and Kenneth F. Fee, as Director of the Division of Milk Control, Department of Agriculture & Markets of the State of New York, Appellants.
   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.  