In the Matter of Pilgrim Packing Co., Inc., Respondent, v. Don J. Wickham, as Commissioner of Agriculture and Markets of the State of New York, et al., Appellants

In the Matter of Pilgrim Packing Co., Inc., Respondent, v. Don J. Wickham, as Commissioner of Agriculture and Markets of the State of New York, et al., Appellants.— [MAJORITY — Staley, Jr., J.] Staley, Jr., J. Reynolds, Staley, Jr., G-reenblott and Cooke, JJ., concur in memorandum by Staley, Jr., J.; Herlihy, P. J., concurs in a separate memorandum in which Reynolds, Greenblott and Cooke, JJ., concur. [CONCURRENCE — Herlihy, P. J. (concurring).] Herlihy, P. J. (concurring). It is apparent that the judgment appealed from must be reversed and the petition dismissed upon the merits and, accordingly, it is not necessary to consider the other contentions raised by the appellants herein. Section 96-s of article 5-B of the Agriculture and Markets Law as enacted in 1962 and in effect at the time the regulation being questioned by the petitioner was adopted authorized the adoption of rules and regulations and mandated that as far as was “ appropriate ” they conform to federal regulations. The Commissioner’s regulation conforms to an appropriate federal regulation (9 CFR 317.8). Section 214-b of the Agriculture and Markets Law specifically excepted public hearings as to the adoption of federal regulations and would not reasonably require one in the present situation. The petitioner has had ample time to conform to the present regulation. In accordance with the foregoing, the judgment must be reversed and the petition dismissed, and I do not reach any other of the grounds urged by appellants for such result.