Dusinberre v. Noyes

• Decision Date: 03 December 1940
• Parties: DUSINBERRE et al. v. NOYES, Com'r of Agriculture and Markets.
• Court: New York Court of Appeals Court of Appeals

284 N.Y. 304

31 N.E.2d 34

DUSINBERRE et al.

v.NOYES, Com'r of Agriculture and Markets.

Court of Appeals of New York.

Dec. 3, 1940.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceeding in the matter of the application under article 78 of the Civil Practice Act of Eugene M. Dusinberre and Nathan Oaks, Jr., doing business as Senaca Guernsey Farms, against Holton V. Noyes, Commissioner of Agriculture and Markets of the state of New York. From a nonunanimous order of the Appellate Division, Third Department, 259 App.Div. 582, 20 N.Y.S.2d 323, which annulled the determination of the Commissioner denying a license to petitioner, the Commissioner appeals.

Order of the Appellate Division reversed and the determination of the Commissioner of Agriculture and Markets confirmed. Milo R. Kniffen and Robert G. Blabey, both of Albany, for appellant.

Henry S. Manley, of Albany, for respondents.

LEHMAN, Chief Judge.

The Commissioner of Agriculture and Markets has rejected an application of Eugene M. Dusinberre of Geneva, New York, and Nathan Oaks, Jr., of Oaks Corners, New York, ‘for a license to handle, sell, or distribute milk, pursuant to the provisions of Article 21 of the Agriculture and Markets Law.’ The Appellate Division has annulled the determination of the Commissioner on the ground that it is not supported by any credible evidence and is purely arbitrary and capricious. Two judges dissented.

Each of the applicants owns a farm on which he produces Guernsey milk. Dusinberre's farm is one and one-half miles from the city of Geneva. The average daily production of his farm is about two hundred quarts of milk. He sells that milk to White Springs Dairy, a milk dealer in Geneva. The farm belonging to Oaks is about five miles from the Dusinberre farm. The average daily production of his farm is about four hundred quarts. With the exception of about eight or nine gallons daily, which Oaks sells at his farm to retail customers, the milk produced on the Oaks farm is shipped to Syracuse.

The applicants have proposed to erect, equip and operate a small pasteurizing and bottling plant on the Dusinberre farm which, it was estimated, will cost $6,000 or $6,500. The applicants have signed articles of partnership defining their rights and obligations in relation to the operation of the pastuerizing plant and the milk business which they propose to conduct. Dusinberre is to be charged with the management and supervision of the pasteurizing plant and the sale of the milk treated and bottled there, though he has had no experience in handling or selling pasteurized milk. The applicants expect to sell daily about forty quarts of the milk to two stores in Oaks Corners and about one hundred quarts in the hamlets of Seneca Castle, Flint, Stanley and Hall. The remainder of the milk the applicants expect to sell at the farm for 9 cents a quart requiring in addition a deposit on each bottle. The price obtained by retailers in Geneva for milk delivered by them, with a smaller butter-fat content and sold in bottles with an inferior cap, is 12 cents. At least one of the three licensed dealers in Geneva sells milk to customers, who call at his plant, for 10 cents per quart. The applicants have agreed that the milk produced by Dusinberre should be sold first and that Oaks should furnish the remainder of the milk sold by the applicants. Oaks stated that he is not dissatisfied with his present market but he believes that the proposed plan would result in more money for his milk.

These facts are not disputed and for the most part are embodied in findings made by the Commissioner. Testimony was also produced intended to show the probable...