
    In the Matter of the Application of Sylvanus W. Downing, Petitioner, to Review a Determination Made by Holton V. Noyes, as Commissioner of Agriculture and Markets of the State of New York, Respondent.
   There is no dispute as to the facts. Petitioner admits that he sold milk without, a license for about six years. Respondent had discretionary power to refuse a, license upon such a state of facts. (Agriculture and Markets Law, § 258.)

Determination confirmed, without costs.

Bliss, Heffernan, Schenek and Foster, JJ., concur; Hill, P. J., dissents, in a memorandum.

Hill, P. J. (dissenting).

I favor an annulment of the determination. An argument, plausible at least if not more, may be advanced that petitioner was an employee of Linden Farms under the doctrine of Matter of Glielmi v. Netherlands Dairy Co., Inc. (254 N. Y. 60). Petitioner lost his employment and with commendatory energy sought to develop a business of his own. If he violated the statute by selling milk without a license, it was an unintentional violation. The health authorities of the city of New York have certified that he conducted Ms business in a clean, wholesome manner.

The same rule applies to reviews by tMs court of decisions made by Superintendents of Agriculture, Public Service Commissions and town boards. We are instructed in reviewing the findings of a town board “ to examine the evidence to see whether the necessity clearly appeared, and that it was in the interest of' the public instead of some private enterprise or undertaking.” (Matter of Ballston Town Highway, 281 N. Y. 322, 328,)

Petitioner had conducted his business with such a degree of efficiency that his list of customers, first numbering only thirty, was increased to two hundred, and, as earlier mentioned, it is officially certified by the city of New York that he conducted the business in a clean, wholesome way. His possible, but unintentional, violation of the statute does not justify the denial of a license. His business should not be destroyed and he relegated to the too great group of unemployed for so whimsical a reason.  