
    In the Matter of Niagara Frontier Co-operative Milk Producers Bargaining Agency, Inc., et al., Individually and in Behalf of All Other Co-operative Associations and Milk Producers Similarly Situated, Petitioners, against C. Chester Du Mond, as Commissioner of Agriculture and Markets of the State of New York, et al., Respondents.
   Review of a determination of the Commissioner of Agriculture and Markets under article 78 of the Civil Practice Act. The decretal portion of the determination should be confirmed under the authority of Matter of Guernsey Breeders Co-Op. v. Noyes (284 N. Y. 197). Findings of fact are approved and the determination of the Commissioner of Agriculture and Markets is confirmed insofar as it provides: “ (1) A differential in the amount of thirty-five cents per hundredweight is hereby fixed and shall be paid out of the Equalization Pools established by Official Orders Nos. 127 and 129, and as a charge against them, solely on the milk of petitioner, New York State Guernsey Breeders’ Co-Operative, Inc., sold by it as Guernsey milk. (2) Said differential shall become effective as of the inception of Milk Marketing Orders Nos. 127 and 129. (3) This order shall become effective as of the 1st day of ' June, 1945 ”, The review under article 78 of the Civil Practice Act is dismissed on the merits, with $50 costs and disbursements to be paid to the respondent, New York State Guernsey Breeders’ Co-operative, Inc. The unnecessary and improper statements made by the commissioner preceding and in connection with the promulgation of the order are not approved. Hill, P. J., Heffernan. Foster and Lawrence, JJ., concur; Brewster, J., dissents upon the grounds stated in a memorandum in Matter of Rochester Co-op. etc. Agency v. Du Mond {ante, p. 857,' decided herewith). Leave to appeal to the Court of Appeals granted, and this Court certifies that in its opinion a question of law is involved , which ought to be reviewed by the Court of Appeals. Hill, P. J., Heffernan, Brewster, Foster and Lawrence, JJ., concur.  