Aerated Products Co. of Buffalo v. Godfrey

• Citation: 290 N.Y. 92,48 N.E.2d 275
• Parties: AERATED PRODUCTS CO. OF BUFFALO v. GODFREY, Com'r of Health.
• Decision Date: 04 March 1943
• Court: New York Court of Appeals

290 N.Y. 92
48 N.E.2d 275

AERATED PRODUCTS CO. OF BUFFALO
v.
GODFREY, Com'r of Health.

Court of Appeals of New York.

March 4, 1943.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by the Aerated Products Company of Buffalo against Edward S. Godfrey, Jr., State Commissioner of Health, for a declaratory judgment determining that a product manufactured and sold by plaintiff is not a milk product subject to regulation under the Public Health Law. From a judgment on an order of the Appellate Division, 263 App.Div. 685, 35 N.Y.S.2d 124, reversing on the law and facts a judgment for plaintiff on a referee's decision and dismissing the complaint on new findings, plaintiff appeals.

Judgment of Appellate Division reversed, and judgment of trial court affirmed.

FINCH and DESMOND, JJ., dissenting.

[48 N.E.2d 276]

Irving G. Hubbs, of Pulaski, Howard R. Sturtevant, of Buffalo, James M. Hengst, of Columbus, Ohio, and Mark N. Turner, of Buffalo, for appellant.

John J. Bennett, Jr., Atty. Gen. (F. R. Chant and Hugh Reilly, both of Albany, of counsel), for respondent.

LEWIS, Judge.

Upon the decision of an official referee, to whom were referred for hearing and determination the issues in this case, the plaintiff was granted a declaratory judgment which determined that the plaintiff's product, ‘Instant Whip’, is not a milk product, as defined by Regulation 1 of Chapter 3 of the State Sanitary Code, and accordingly that it was not subject to regulation under the Public Health Law. The declaratory judgment further determined that ‘Instant Whip’ is a manufactured food product, within the classification of ‘frozen desserts mix,’ under article 4-A, section 71-a, subdivision 9, of the Agriculture and Markets Law, and as such is subject to regulation under the provisions of the latter statute. The Appellate Division reversed the judgment of Trial Term on the law and facts and dismissed the complaint. To that end it reversed and disapproved certain findings of fact and conclusions of law by the official referee and made new findings of fact as follows: ‘Instant Whip is a milk product. Its preparation and sale are subject to regulation under the Public Health Law.’ Asserting that the judgment of reversal entered upon the order of the Appellate Division is erroneous, the plaintiff has appealed therefrom as of right.

In those circumstances this court has jurisdiction to review the facts found by the Appellate Division and its decision thereon and, with appropriate respect for the findings of the trial court, we may ascertain whether the decision by the Appellate Division was in accord with the weight of evidence. State Const. art. VI, s 7; Civil Practice Act, s 589, subd. 2 (as amended L.1926, ch. 725); York Mortgage Corp. v. Clotar Const. Corp., 254 N.Y. 128, 131-134, 172 N.E. 265;Forstmann v. Joray Holding Co., 244 N.Y. 22, 28, 29, 154 N.E. 652;Matter of Flagler, 248 N.Y. 415, 420, 162 N.E. 471, 59 A.L.R. 649.

The plaintiff, a New York corporation, having its principal place of business at

[48 N.E.2d 277]

Buffalo, is licensed by AEration Process, Inc., an Ohio corporation, to manufacture and sell ‘Instant Whip.’ That product made by a patented process consists of pasteurized cream to which are added sugar and enough vanilla to flavor the mixture. After seven ounces of the mixture have been placed in a sterilized metal container, the air is withdrawn by a vacuum pump and replaced by seven grams of nitrous oxide gas. The nitrous oxide, which is conceded to be harmless to health, is introduced into the container at a pressure of one hundred and fifty pounds. One-half of it, upon agitation, permeates...