
    In the Matter of H. P. Hood & Sons, Inc., Petitioner, against C. Chester Du Mond, as Commissioner of Agriculture and Markets of the State of New York, Respondent.
    Third Department,
    November 13, 1946.
    
      
      Whalen, McNamee, Creble & Nichols, attorneys (John R. Titus of counsel), for petitioner.
    
      Donald L. Brush, attorney (Robert G. Blabey of counsel), for respondent.
   Memorándum by the court.

Proceedings under article 78 of the Civil Practice Act to review part of the determination of the respondent which granted petitioner, H. P. Hood & Sons, Inc., a milk dealer’s renewal license to operate three milk plants in this State and denied the application for a license to establish and operate a fourth milk plant at Greenwich, New York.

Béspondent contends that as the petitioner- applied for and accepted a license to operate three milk plants in this State, it is precluded from making any attack upon the order which also denied a license to establish and operate a fourth plant. The applications were separately made and separately considered. There is no merit in the contention urged.

The court at Special Term granted a motion to strike from the petition a paragraph which dealt with a legal issue involved. The issues involved were transferred to this court and can there be disposed of. (Matter of Newbrand v. City of Yonkers, 285 N. Y. 164, 174.) The statute provides that no license to operate a milk plant shall be issued by the commissioner unless he is satisfied, among other things, that such issuance would not tend to a destructive competition in a market already adequately served, and that the issuance of the license is in the public interest. (Agriculture and Markets Law, § 258-c.) Large discretion is vested in the commissioner. (Agriculture and Markets Law, § 254.) That discretion has not been abused. (Matter of Dusinberre v. Noyes, 284 N. Y. 304; Matter of Kraft Cheese Co., Inc., v. Noyes, 263 App. Div. 761; Matter of Elite Dairy Products v. Ten Eyck, 271 N. Y. 488.) The record justifies the conclusion reached.

Determination confirmed, with $50 costs and disbursements.

Hill, P. J.

(concurring). The language of the statute (Agriculture and Markets Law, § 258-c) does not limit its scope, as contended by petitioner, to benefits to be obtained for producers of milk. The clause concerning destructive competition, “in a market already adequately served ” seems to apply to the ultimate purchasers of milk for domestic consumption, and contemplates an oversnpply that would be injurious to the vendors rather than the producers. The requirement that the license should not be granted unless “ in the public interest ” is broad and inclusive. In Wolff Co. v. Industrial Court (262 U. S. 522, 543) consideration was given to The small extent of the injury ” because of the limited amount of business done by the packing company. Here 150 cans of milk is a relatively inconsequential amount. In People v. Nebbia (262 N. Y. 259, affd., sub nom. Nebbia v. New York, 291 U. S. 502) it was determined that the production of milk was a business which might be regulated in the public interest and for the public welfare. That case dealt with the fixing of prices. The matter of public health as affected by an inadequate supply of milk was considered in State v. Auclair (110 Vt. 147). Were we to adopt the Vermont authority, the claimed possible shortage in “ local markets such as Troy ” may furnish a ground for the denial.

Heffebnan, Beewstee, Foster and Lawbence, JJ., concur in memorandum by the court; Hill, P. J., concurs, in a separate memorandum.

Determination confirmed, with $50 costs and .disbursements.  