(dissenting). This is a proceeding under article 78 of the Civil Practice Act to review a determination of C. Chester Du Mond, Commissioner of Agriculture and Markets of the State of New York, which denied the application of petitioner for a milk dealer’s license for the year ending March 31, 1952. Bight of review is given by section 258-d of the Agriculture and Markets Law (as amd. by L. 1951, ch. 684). The proceeding to review was instituted by an order to show cause returnable at Special Term (Monroe County), together with a petition as required by article 78 of the Civil Practice Act, seeking annulment of the determination, and for an order directing respondent to issue a milk dealer’s license for the license year ending March 31,1952. On the return day of the order to show cause, respondent appeared specially and raised the preliminary objection that the exclusive jurisdiction in the proceeding is vested in the Supreme Court in the Third Judicial District. The Monroe Special Term (Blauvelt, J.) held that the Monroe County Special Term had jurisdiction and denied respondent’s motion to dismiss the petition with leave to serve an answer to the petition within ten days. It is from this order of the Special Term that this appeal comes to us.
Petitioner takes the position that the issue raised by respondent’s motion to dismiss is not one of jurisdiction but one of venue and urges that section 1287 of the Civil Practice Act specifically authorizes the proceeding to review under article 78 of the Civil Practice Act to be brought in the Supreme Court within the judicial district where the material facts took place and that therefore the same was properly returned in Monroe County since the material facts giving rise to the determination sought to be reviewed occurred in the seventh judicial district. I take it from petitioner’s brief that petitioner recognizes that if the petition had been directed' against the “ Department of Agriculture and Markets ” rather than against the respondent, the Commissioner of Agriculture, the present proceeding would *122have to be instituted in the third judicial district. Petitioner’s contention that the commissioner should be considered distinct from the department is without merit.
Section 1287 of the Civil Practice Act, as it read prior to 1951, provided in part that proceeding’s to review may be brought in the judicial district (1) embracing the county where the respondent made the determination complained of; (2) or refused to perform the duty specifically enjoined upon him by law; (3) or wherein the proceedings are brought or taken in the course of which the matter sought to be restrained originated, as the case may be; (4) or wherein it is alleged in the petition that the material facts otherwise took place. The section was amended by chapter 593 of the Laws of 1951, by adding thereto: “or wherein the principal office of the respondent is located.” Also added by the same chapter was the following: “ The special term at which relief is applied for may, in the exercise of its discretion, transfer the proceeding to the county wherein the principal office of the respondent is located.”
Prior to the amendment of 1951 there was no provision in the statute for a change of venue in a proceeding brought under article 78. Rules 146 and 147 of the Rules of Civil Practice apply only to “ actions ” and not to a proceeding brought under article 78.
If the proceeding is brought in the wrong district, the court, as I view it, is required to dismiss the proceeding, although I realize that cases are to be found where respondent moved for change of venue or the parties agreed to a transfer of the proceeding to the proper district.
The discretion given the Special Term by this last amendment relates only to a case in which a proceeding is brought properly in a district other than where the office of the respondent is located and in that case, the Special Term is authorized in its discretion to transfer the proceeding to the county where the principal office of the respondent is located. The amendment has no applicability to that provision of the section which specifically requires tnat in the instances therein enumerated, application shall be made to the Special Term in the Third Judicial District.
Prior to 1950, section 1287 provided that “ If the petition be directed against the regents of the university of the state of New York, the application shall be made to a special term of the supreme Court in the third judicial district.”
*123The Commissioner of Education was added to that portion of the section above quoted in 1950 (L. 1950, ch. 234) so that thereafter applications involving petitions directed against the Commissioner of Education were required to be made to a Special Term in the Third Judicial District. The court, in Matter of Rochester Co-op. Milk Producers Bargaining Agency v. Du Mond (185 Misce. 522) recognized that applications under article 78 to review the determination or order of the Regents of the University of the State of New York must be made in the third judicial district. The court said (pp. 524-525): “ Respondent’s position that all such proceedings under article 78 to review the determination.or order of a State officer made in the county of Albany, must be brought in the Third Judicial District, is not tenable. Any prior existing doubt as to the legislative intent that such a proceeding may be brought outside the district where the determination was made seems to have been entirely dissipated by the amendment of section 1287 by chapter 420 of the Laws of 1938. This amendment expressly requires, in a petition directed against the Regents of the University of the State of New York, that the application shall be made in the Third Judicial District.” (Emphasis supplied.)
The requirement that the proceeding be brought in the third judicial district by section 1287 of the Civil Practice Act in proceedings involving the Regents of the University of the State of New York and the Commissioner of Education, was extended by chapter 593 of the Laws of 1951 by the addition of the following: “ the state tax commission, the public service commission, the comptroller, the department of agriculture and markets or the water power and control commission ”. By the clear language of this amendment, a petition seeking a review of the determinations of any of the above-mentioned public bodies or officers must be made to a Special Term of the Supreme Court in the Third Judicial District. This right of review being conferred by statute, is available only within the terms of the statute. No constitutional right to review the determination of an administrative body existed at common law and none exists today except by statute.
In Matter of Queens-Nassau Tr. Lines v. Maltbie (183 Misc. 924, affd. 269 App. Div. 680, affd. 294 N. Y. 887) petitioner made application in New York County to prohibit the Public Service Commission from taking proceedings to fix petitioner’s rates. Respondent moved to dismiss the petition upon the ground that exclusive jurisdiction in the proceeding is vested in the Supreme *124Court, Albany County, claiming that the Supreme Court, New York County, has no jurisdiction oí the proceeding, i.e., that venue lies only in Albany County. The Special Term in granting the motion to dismiss upon the ground that it was not brought within the proper judicial district as required by section 1287 of the Civil Practice Act as it then existed, said (p. 929): ‘ ‘ Inasmuch as the order of May 11,1944, directing an investigation of the petitioner’s rates of fare was made in the city of Albany which is in the Third Judicial District, this proceeding must be brought in the Third Judicial District and the Supreme Court in the First Judicial District is without jurisdiction to entertain this application.”
Since that time, as above pointed out, section 1287 of the Civil Practice Act has been amended to provide that application for proceedings to review under article 78 of the Civil Practice Act when directed against the Public Service Commission shall be made to the Special Term in the Third Judicial District.
In this instance the proceeding to review was brought in violation of express statutory requirement. If there was a statutory provision for change of venue applicable to such a proceeding, the situation might be remedied by a change of venue. There being none, however, the remedy was by motion to dismiss.
Whether the defect is jurisdictional or one of venue is of little or no moment if it consists of a failure to comply with the statutory requirement that the application for review should be made to a Special Term of the Supreme Court in the Third Judicial District. •
The order appealed from should be reversed and the petition dismissed.
All concur with Wheeler, J., except Vaughan, J., who dissents and votes for reversal and for granting defendant’s motion to dismiss the petition in a separate opinion. Present — Taylor, P. J. MoCurn, Vaughan, Kimball and Wheeler, JJ.
Order affirmed, with $50 costs and disbursements, with leave to respondent below to make proper application for a change of venue, if so advised.