In ..this proceeding it. is the petitioner’s contention that the Commissioner erred in failing to make an appropriate differential for petitioner’s Guernsey milk. The previous history óf the Buffalo proceeding is reported at 260 Appellate Division 240, modified and remitted 284 New York 197, and that of the Rochester order is reported at 260 Appellate Division 139, modified and remitted 285 New York 523. Upon the rehearings ordered by the Court, .of Appeals the proceedings were consolidated and are now treated as one.
After the above decisions of the Court of Appeals and remittiturs of that court, orders were made at Special Term by which the matter of détermining “ a differential in favor of petitioner’s milk sold as Guernsey milk ’’was remitted to the respondent commissioner “solely in respect thereto, with instructions to make the necessary findings of fact ’ ’ and' ‘ * with instructions to make any necessary adjustment of petitioner’s obligations and benefits under the equalization provisions in the order in accordance with whatever determination the' Commissioner may make.” Nevertheless the notice of hearing and. the hearing itself were not limited to the matters thus directed to be determined and the Commissioner proceedéd to hear and determine the relative -merits of Guernsey and other milks, generally. He did not determine the special facts relative to petitioner’s Guernsey milk, its cost of production, marketability and quality, but found that he was unable to draw any definite conclusions concerning the relative cost of producing milk by the use of cattle of different breeds, although' the record is replete with *464evidence on this subject. He did make a finding, however, that other things being equal, it cost more to produce a given weight of Guernsey milk containing four and five-tenths per cent of fat than it does to produce an equal weight of milk containing three and five-tenths per cent fat by the use of cows of some other breeds. The evidence would also have sustained a further finding, although none was made, that the butterfat differential was inadequate to cover this increased cost. The Commissioner also professed to be unable to compare the market price received for Guernsey and other milks although there was much evidence bearing thereon. Finally he states that producers and marketers of Guernsey milk are not restrained either by law or the orders in question from selling their milk for a premium price and retaining such premium. This last conclusion was negatived by the admission upon the argument that this privilege was of little or no value because of the present maximum prices which are now in effect under Federal price regulations.
Upon the previous appeal the Court of Appeals declared the power of the Commissioner to grant a differential where it was shown that there existed a distinct difference in production costs, quality or marketability of milk of one breed of cows from that of other breeds (284 N. Y. 197). Nevertheless in spite of this holding and the finding that it did cost more to produce Guernsey milk, the Commissioner refused to grant such differential. The great weight of the evidence hére sustains petitioner’s contention that it cost more to produce its Guernsey milk, that in most respects such milk was superior to the average milk produced under these orders and that it possessed greater marketability.
The determination does not comply with the directions of the Court of Appeals. Also many of the facts established by the petitioner were not found and many of the "findings which were made are so preponderantly contrary to the weight of the evidence that a jury’s verdict affirming the existence thereof in an action in the Supreme Court would have to be set aside as against the weight of the evidence.