Glen Mohawk Milk Assn v. Wickham

• Decision Date: 15 May 1969
• Citation: 302 N.Y.S.2d 593,250 N.E.2d 77,24 N.Y.2d 963
• Parties: , 250 N.E.2d 77 Application of GLEN MOHAWK MILK ASSOCIATION, Inc., Appellant, for an Order, etc. v. Don J. WICKHAM, Commissioner of Agriculture and Markets of the State of New York, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 593

302 N.Y.S.2d 593

24 N.Y.2d 963, 250 N.E.2d 77

Application of GLEN MOHAWK MILK ASSOCIATION, Inc. Appellant, for an Order, etc. v. Don J. WICKHAM, Commissioner of Agriculture and Markets of the State of New York, Respondent.

Court of Appeals of New York.

May 15, 1969.

Appeal from Supreme Court, Appellate Division, Third Department, 28 A.D.2d 764, 280 N.Y.S.2d 839. Gustave A. DeLemos, New York City (John R. Davison, Albany, of counsel), for appellant.

Robert G. Blabey, Albany (George W. Gloning, Jr., Dennis P. Buckley, Albany, of counsel), for respondent.

Petitioner brought a proceeding under article 78 of CPLR to annul determination by the respondent, the Commissioner of Agriculture and Markets, partially revoking the milk dealer's license of petitioner. The license originally authorized petitioner to make sales and deliveries of milk at wholesale in Montgomery County and Fulton County and to sell milk to other dealers F.O.B. its Fultonville plant. The respondent at hearing made findings that petitioner by subterfuge had extended its business to 20 counties in violation of limitations of its license. Under the Agriculture and Markets Law, Consol.Laws, c. 69, § 258--c the respondent amended the license of the petitioner so as to limit it to sale and delivery of milk at wholesale in Montgomery County and Fulton County and limited sales to other licensed dealers authorized to buy from petitioner and not otherwise unless specifically authorized in writing by respondent on application by petitioner for extension of its license.

The Supreme Court, Special Term, Albany County, transferred the proceeding to the Appellate Division.

The Appellate Division entered an order June 27, 1967 confirming the determination by the respondent. The Appellate Division held that the respondent could clearly find on the record that petitioner, in conduct of its milk business, had adopted a continuing course of conduct which extended its wholesale business well beyond the confines of Montgomery County and Fulton County without true F.O.B. sales at the Fultonville plant, and that petitioner's license, as revised by respondent, was not so restrictive in limiting sales to licensed dealers F.O.B. Fultonville as to be unreasonable.

The petitioner appealed to the Court of Appeals by permission of the Court of Appeals. The petitioner contended in the Court of Appeals that Section 258--c(e) of the Agriculture and Markets Law is void as an unconstitutional...