
    In the Matter of the Application of New York State Guernsey Breeders Co-Operative, Inc., Petitioner, Respondent, for an Order under Article 78 of the Civil Practice Act, against Holton V. Noyes, Commissioner of Agriculture and Markets of the State of New York, Respondent, Appellant.
   Appeal from an order denying the motion of the Commissioner of Agriculture to dismiss a proceeding brought under article 78 of the Civil Practice Act and requiring that he serve a copy of his answer and return. The determination of the Commissioner is designated as Official Order No. 127 under chapter 383 of the Laws of 1937, now sections 258-k to 258-m of the Agriculture and Markets Law, commonly called the “ Rogers-AJlen Law.” That act has been found unconstitutional at the Special Term. The Commissioner has appealed from that decision directly to the Court of Appeals, as only a constitutional question was involved. This petitioner asserts illegality of the order on grounds other than constitutionality, and its right to a review under article 78 of the Civil Practice Act should the law be held constitutional. While this court would not deem it proper to take this case up for decision on the merits until the Court of Appeals has passed upon the constitutionality of the act in the case now before it, that fact does not excuse the Commissioner from filing his answer and return within the time required by the order appealed from. Order affirmed, with costs. Hill, P. J., McNamee, Crapser and Bliss, JJ., concur. [Special Term opinion herein is not reported. See, also, Noyes v. Erie & Wyoming Farmers Co-operative Corp., 170 Misc. 42; revd., 281 N. Y. 187.]  