Opinion
January 5, 1961
Appeal from the Oswego Special Term.
Present — Williams, P.J., Bastow, Goldman, McClusky and Henry, JJ.
Order unanimously modified by striking therefrom the first and second ordering paragraphs thereof and by modifying the third ordering paragraph thereof to read as follows: "Ordered that, with respect to the application of the petitioner for a permit to distribute milk and milk products in said City of Oswego, obtained from the processing plants of Dairymen's League Co-operative Association, Inc. and Byrne Dairy, Inc., both located at Syracuse, N.Y., the matter be, and the same hereby is remitted to the respondent for further proceedings in accordance with the memorandum of this Court," and as so modified the order is affirmed, with $25 costs and disbursements to appellant. Memorandum: There must be affirmative action taken by local health officers who receive applications for local milk permits, in order to comply with section 258-j Agric. Mkts. of the Agriculture and Markets Law. This section plays an important part in the plan of control and distribution of milk products within the State of New York. Its mandates should not be disregarded or eliminated by judicial interpretation. In order to fully comply with the section, health officers must forward to the Commissioner information tending either to satisfy him in regard to the three subjects involved or on the other hand, to indicate that the facts gathered are not such as would warrant his satisfaction. In either event the health officer must forward the information contemplated by the section to the Commissioner. The local health officer should have a reasonable time within which to assemble and forward the information, and upon receipt of the Commissioner's indication of satisfaction or nonsatisfaction as to the three subjects, either grant or deny the application, providing of course that health and sanitation requirements are met.