Opinion
November 19, 1926.
Appeal from Supreme Court of Erie County.
Greenleaf S. Van Gorder, for the appellant.
Albert Ottinger, Attorney-General [ Henry S. Manley, Deputy Attorney-General, of counsel], for the respondent.
The order appealed from denied an application for a peremptory mandamus order to compel the Commissioner of Farms and Markets to make an award of $100 to the petitioner for a tubercular bull slaughtered by the State. We approve of the denial of the application, for the reason that a certificate awarding indemnity had been issued pendente lite and was set up in the answering affidavit. This constituted a good defense to the application. ( People ex rel. ____ v. Baker, 35 Barb. 105.)
If there had been an arbitration and an award pursuant to it, we should be constrained to hold a finding as to the value of the animal final and that, therefore, certiorari did not lie. (Farms Markets Law, § 83; People ex rel. Dawley v. Wilson, 232 N.Y. 12.) But there was no arbitration. An appraisal was had resulting in a finding that such an animal as the one in question, if a "grade" animal, was worth fifty dollars, if a "pure-bred," one hundred dollars. Upon this appraisal, the Commissioner of Farms and Markets issued a certificate that the value of the animal was fifty dollars. The statute must be strictly construed, and we decline to attribute finality to a result reached thus informally. However, since the papers presented are sufficient, we shall treat this as a certiorari proceeding to review the determination of the Commissioner; this we are authorized to do by section 111 of the Civil Practice Act.
One obligation resting upon the Commissioner was to decide whether or not the Holstein-Friesian Registry Association, Inc., was a "duly organized and recognized corporation or association formed for the purpose of registering pure-bred domestic animals." (Farms Markets Law, § 96.) In so doing, acting in an administrative capacity, he was not entirely bound by jury-trial rules of evidence. (1 Wigm. Ev. [2d ed.] 36, § 4-c.) To ascertain whether or not the status of such an organization is "recognized" to be one thing or another seems to require a resort to what we ordinarily deem "hearsay" evidence. The Commissioner could hardly find proof as to such recognition, more persuasive than authentic reports from reputable sources. In addition to statements in the petition itself, he had such reports for his guidance, from State Secretaries of Agriculture, State Veterinarians and Livestock Sanitary Boards, some half dozen in number. We do not find that his conclusion was based upon insufficient evidence, even though he utilized much that would usually not be acceptable in jury trials in a court of law. The so-called "residuum rule" laid down in construing section 68 Work. Comp. of the Workmen's Compensation Law in Matter of Carroll v. Knickerbocker Ice Co. ( 218 N.Y. 435) must be taken to apply to the situation there presented. It does not control in the instant case.
Upon reviewing the petition, the return and the certificate issued, we find that the Commissioner's determination should be confirmed. But we do not assume to decide generally that the Holstein-Friesian Registry Association, Inc., is not a "duly organized and recognized corporation or association formed for the purpose of registering pure-bred domestic animals." Our approval of the finding as to the status of that association is confined to this proceeding and rests upon the proof before us. Upon another record, presenting different evidence, a contrary holding in this respect may be reached.
The order denying the application for a mandamus order should be affirmed, and the determination of the Commissioner of Farms and Markets confirmed, with ten dollars costs and disbursements to respondent.
All concur. Present — HUBBS, P.J., CLARK, SEARS, CROUCH and TAYLOR, JJ.
Order affirmed and determination of Commissioner confirmed, with ten dollars costs and disbursements to respondent.