
    In the Matter of the Application of Oliver Reynolds, Petitioner, against Holton V. Noyes, as Commissioner of Agriculture and Markets of the State of New York, Respondent.
   Petitioner apphed for a milk dealer’s Ecense for the Ucense year 1939. This appHcation was denied by order dated March 24, 1939. Petitioner did not seek a review of this order within the statutory period. Despite this denial he continued to seE milk directly to customers. On October 2, 1939, he made another appHcation for a Ecense, and this appEcation was denied by order dated November 29, 1939. It is this order which petitioner seeks to review in this proceeding. One of the grounds assigned by the respondent for the denial of the second appEcation was that petitioner sold milk without a Ecense. This fact is sustained by the evidence; indeed it is not controverted, and is sufficient to support the order of denial. We have no choice but to confirm. Determination confirmed, without costs. BEss, Heffernan, Schenck and Foster, JJ., concur; HiE, P. J., dissents. Hill, P. J. (dissenting). This petitioner, who, at the time he appEed for a Ecense, was a farmer milking three cows and selling only the surplus milk, belongs to the class from which a license should not be required. He comes within the intent and purview of section 257 of the Agriculture and Markets Law, and the failure by the Commissioner to exempt him from the necessity of obtaining a Ecense was arbitrary and capricious. The determination should be annuHed and the matter remitted with directions to the Commissioner to waive the necessity for a Ecense.  