Cadwell v. Du Mond

Taylor, J. In this proceeding instituted by the petitioner pursuant to article 78 of the Civil Practice Act to review the determination of the Commissioner of Agriculture and Markets of the State of New York denying an application for an extension of his milk dealer’s license the respondent appears specially [360] and raises a jurisdictional challenge to the proceeding upon the ground that the petition to institute it was not served upon him in the manner required by section 258-d of the Agriculture and Markets Law. That section, as amended by chapter 684 of the Laws of 1951, effective April 10, 1951, now reads as follows: “ § 258-d. Proceedings to review. The action of the commissioner in refusing to grant or renew a license, or in revoking or suspending a license, or in conditioning’- or limiting the granting or renewal of a license, may be reviewed in the manner provided by the civil practice act and the decision of the commissioner shall be final unless within thirty days from the date of service thereof upon the party affected thereby a court proceeding is instituted to review such action. The pleadings upon which such review proceeding is instituted shall be served upon the commissioner or upon an assistant commissioner, personally, in the manner provided for the personal service of a summons in an action unless a different manner of service is provided in an order to show cause granted by the supreme court.” The notice of motion and accompanying petition were served by registered mail addressed as follows: “ State of New York, Department of Agriculture and Markets, Albany 1, N. Y.” which, of course, is not personal service as prescribed by the statute. No order to show cause providing for a different manner of service has been granted. Hence, the special appearance of the respondent is sustained and the proceeding dismissed, without costs. Submit order.