¶1(dissenting). I dissent and vote to affirm the order and judgment dismissing the complaint herein on the following grounds:
This is an attempt by the appellant herein to divest the Commissioner of Agriculture and Markets of the State of New York of the jurisdiction delegated to him by the Legislature in matters relating to the plaintiff's milk business. There is no question but that the plaintiff has an adequate remedy at law and if the Commissioner acts in an arbitrary or capricious manner plaintiff has a right to a review.
¶2The administrative law is here and will grow instead of diminish in the future. It has been made necessary by our economic and social conditions and if its provisions are unfair an appeal to the Legislature and not to the courts is the proper remedy.
¶3The Legislature has set up the necessary machinery to grant to the plaintiff all of his rights within the department; they have provided for a review in case the Commissioner fails to act properly. That is all that he can expect and it is not the function of the court to try to set aside the will of the Legislature when they have acted in a valid way where they have authority.
¶4Order and judgment dismissing the plaintiff’s complaint reversed on the law and facts, with ten dollars costs and disbursements, and motion to dismiss complaint denied, with ten dollars costs.