
    In the Matter of the Application of George A. Beck, Petitioner, for a Certiorari Order against Peter G. Ten Eyck, Commissioner of the Department of Agriculture and Markets of the State of New York, and Another, Respondents.
    Supreme Court, Special Term, Albany County,
    February 9, 1937.
    
      Maurice Frey, for the petitioner.
    
      Milo R. Kniffen [Robert G. Blabey of counsel], for the respondents.
   Schenck, J.

The respondents, Commissioner of the Department of Agriculture and Markets and the Director of the Division of Milk Control, move for an order vacating an order of certiorari and stay heretofore granted, upon the grounds: (1) That the petitioner above named is not a party qualified to review the respondent Commissioner’s Official Order No. 112; (2) that the respondent Commissioner’s offer of compromise by the payment of a civil penalty cannot legally be reviewed by certiorari, and (3) that the stay contained in the order of certiorari was obtained without notice to the respondent Commissioner.

Petitioner’s cross-motion is for an order permitting him to serve upon respondents an amended petition and to strike from the affidavit of the Director of Division of Milk Control certain matters declared to be irrelevant and collateral.

It appears that the Commissioner, on notice, held a public hearing on May 4, 1936. Clearly, the petitioner is not a party qualified to review the Commissioner’s Official Order No. 112. The statute provides that an order of the Commissioner may be reviewed by certiorari by a “ person appearing of record at the hearing either in person or by personal representative and opposing the making of the order.” (Agriculture and Markets Law, § 258-m.) The petitioner did not appear at the hearing, nor did any one appear in his behalf, and the Commissioner promulgated his order.

The Commissioner did request the petitioner to pay the sum of $100 for a violation of an official order, but that was not a direction for the payment of a penalty, but was in effect an offer of compromise. (Agriculture and Markets Law, § 39.) This is not the subject of a review by certiorari.

The order of certiorari and the stay should be vacated. Petitioner’s cross-motion to amend is denied.

Submit order. No costs of motion.  