Opinion
March 20, 1952.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ.
This is a proceeding under article 78 of the Civil Practice Act to review the determination of the Commissioner of Agriculture and Markets which denied petitioner's application for an extension of his milk dealer's license. In June, 1950, petitioner, then a duly licensed milk dealer in the city of New York, applied to the Commissioner of Agriculture and Markets for an extension of his license so as to permit him to sell milk in the borough of The Bronx. In a primary application filed with the department in the year 1950 for 1951, petitioner made application to sell milk only in Manhattan and accordingly a license was issued to him to sell in that territory. In fact, he had been selling in Manhattan for eleven years since 1940. In his application for permission to sell in The Bronx, in response to the inquiry as to the territory being served by him at that time, he said "Manhattan". He was then asked specifically if he were then selling milk in any other place except Manhattan and to that inquiry he answered, "No". It appears however, from his affidavit in support of his present application that he has been selling milk continuously in The Bronx since 1938 to three different owners. The store at which such sales were made is two miles beyond the Manhattan borough line. There is no issue of fact involved here. The commissioner, in denying the petitioner's application, found that false statements were contained therein and that the application for an extension was likewise false in that the applicant did not disclose that he was selling milk in The Bronx. For these reasons the application was denied. The petitioner's license to operate in Manhattan is not affected by the determination. Determination unanimously confirmed, without costs.