Begent v. Noyes — 284 N.Y. 229

Majority

p. 229

In the Matter of Leslie D. Begent, Doing Business as Begeacres Farm, Respondent, against Holton V. Noyes, as Commissioner of Agriculture and Markets of the State of New York, Appellant.

Argued October 7, 1940;

decided November 19, 1940.

p. 230

Robert G. Blabey and Milo R. Kniffen for appellant.

Henry S. Manley for respondent.

In August, 1939, after hearings held, a license to sell milk at wholesale and retail in the city of Ithaca was issued to petitioner by the Commissioner of Agriculture and Markets. Thereafter a proceeding was brought under article 78 of the Civil Practice Act to review the decision of the Commissioner refusing to modify the limitations or conditions contained in the license. The Appellate Division, by a divided court, has annulled such decision and determination on the law and facts and reversed certain findings of fact. Although nothing further is said in the order as to what shall now occur, it is clear that there is here a remission to the Commissioner for further proceedings, including a further or new hearing on the merits and a determination by him as to limitations or conditions, if any, to be attached to the licensing of petitioner. The order of the Appellate Division is, therefore, not a final one.

The appeal should be dismissed, with costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Lewis, JJ., concur.

Appeal dismissed.