Lang's Creamery, Inc. v. City of Niagara Falls

• Decision Date: 11 July 1929
• Citation: 251 N.Y. 343,167 N.E. 464
• Parties: LANG'S CREAMERY, INC., v. CITY OF NIAGARA FALLS et al.
• Court: New York Court of Appeals Court of Appeals

251 N.Y. 343

167 N.E. 464

LANG'S CREAMERY, INC.,

v.CITY OF NIAGARA FALLS et al.

Court of Appeals of New York.

July 11, 1929.

Action by Lang's Creamery, Inc., against the City of Niagara Falls and others. From a judgment of the Appellate Division (224 App. Div. 483, 231 N. Y. S. 368), reversing on the law and facts a judgment of Special Term for plaintiff and dismissing complaint, plaintiff appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, Fourth department.

Robert J. Moore, of Niagara Falls, for appellant.

George W. Knox, Corp. Counsel, of Niagara Falls, for respondents.

PER CURIAM.

The city of Niagara Falls has a milk ordinance, the validity of which is not challenged in this action, which provides that no one shall sell milk in the city without obtaining a permit or license from the health officer, renewable annually, which shall be applied for in writing, stating the sources of applicant's milk supply. On such an application the health officer shall inspect such sources of supply, ‘having in view the protection of the public health.’ If he is satisfied that the applicant has fully complied with the regulations, a milk dealer's permit shall be issued to the applicant.

In the year 1921, section 13-a was added to the milk ordinance. It provides: ‘No milk or cream shall be sold or offered for sale as ‘pasteurized’ milk or cream unless the same shall have been ‘pasteurized’ within the limits of Niagara Falls.'

Pasteurization is a simple process devised by Pasteur for preventing or checking fermentation in milk or other fluids by exposure to a temperature of about 145 degrees Fahrenheit. Milk thus pasteurized and cooled and protected against subsequent contamination or deterioration may be used with confidence that it has been rendered safe as regards pathogenic bacteria, without serious injury to any of the normal constituents of the milk itself.

Any other pure and wholesome milk, raw or pasteurized, may be sold in the city of Niagara Falls by a licensed dealer without express restrictions upon the source of origin.

Plaintiff is a domestic corporation which pasteurizes milk in the city of Buffalo, where it maintains a pasteurizing plant. It bottles its product, and desires to sell the bottled product in the city of Niagara Falls. It has not applied for a license to sell milk in Niagara Falls because it has been informed by the city officials that the ordinance will be enforced against it. It challenges the validity of this ordinance as an unreasonable exercise of the power of the city, under General City Law (Consol. Laws, c. 21; art. 2-A [Home Rule Act], § 20, subd. 13) to regulate and license occupations and businesses so as to preserve and care for the health of the inhabitants of the city and visitors thereto and as an arbitrary discrimination against out of town dealers in pasteurized milk. It brings this action to restrain the city and its officials from enforcing its ordinance or interfering with the sale in the city by it of pure pasteurized milk and cream.

Defendants not only assert the reasonableness of the ordinance, but put in issue the allegations of the complaint that plaintiff maintains a proper plant in Buffalo; assert that plaintiff violates the regulations of the state department of health in many particulars in maintaining its plant, and that it would not be entitled to a milk license in any event.

On the trial, the official referee held that the ordinance was an invalid exercise of municipal power, and made findings of fact to the effect that plaintiff met all the requirements of the health laws of the state of New York and of the state health department and of the ordinances and regulations of the health departments of the municipalities in which it sells...