Proceedings under article 78 of the Civil Practice Act to review part of the determination of the respondent which granted petitioner, H. P. Hood & Sons, Inc., a milk dealer’s renewal license to operate three milk plants in this State and denied the application for a license to establish and operate a fourth milk plant at Greenwich, New York.
Béspondent contends that as the petitioner- applied for and accepted a license to operate three milk plants in this State, it is precluded from making any attack upon the order which also denied a license to establish and operate a fourth plant. The applications were separately made and separately considered. There is no merit in the contention urged.
The court at Special Term granted a motion to strike from the petition a paragraph which dealt with a legal issue involved. The issues involved were transferred to this court and can there be disposed of. (Matter of Newbrand v. City of Yonkers, 285 N. Y. 164, 174.) The statute provides that no license to operate a milk plant shall be issued by the commissioner unless he is satisfied, among other things, that such issuance would not tend to a destructive competition in a market already adequately served, and that the issuance of the license is in the public interest. (Agriculture and Markets Law, § 258-c.) Large discretion is vested in the commissioner. (Agriculture and Markets Law, § 254.) That discretion has not been abused. (Matter of Dusinberre v. Noyes, 284 N. Y. 304; Matter of Kraft Cheese Co., Inc., v. Noyes, 263 App. Div. 761; Matter of Elite Dairy Products v. Ten Eyck, 271 N. Y. 488.) The record justifies the conclusion reached.
Determination confirmed, with $50 costs and disbursements.