
    In the Matter of Alfred G. Stella, Petitioner, against James R. Macduff, as Commissioner of Motor Vehicles, Respondent.
   Determination annulled, without costs, and matter remitted to the Commissioner of Motor Vehicles to hold a new hearing. Memorandum: It is impossible on this record to tell how this accident happened. Eo one testified as to where petitioner’s car passed the bus or in what lane his car was being operated on St. Paul Boulevard immediately prior to making the turn into Baton Road. It does not appear that the three exhibits, (1) the police report, (2) the bus driver’s motor vehicle report and (3) the petitioner’s motor vehicle report, were offered or received in evidence, but regardless of this fact they have been made a part of the record. The police officer was not called as a witness at the hearing and the police report should not be a part of the record. (Matter of Jenson v. Fletcher, 277 App. Div. 454, affd. 303 N. Y. 639.) If the other two exhibits "were to be considered by the referee they should have been offered in evidence so the respective operators of the vehicles could be examined as to the statements therein made. We assume the Summary ” signed by the referee is intended as his findings of fact. If so, the finding that petitioner was driving in the second lane from the east side of St. Paul Boulevard cannot be sustained by the testimony taken at the hearing. The only place in the record we find such a statement is in Exhibit 2, the bus driver’s report, which fact he failed to testify to on the hearing. We think there should be a new hearing, at which time the facts can be developed so that there can be a basis for a proper review if one is desired. The referee should find the facts based on the competent evidence. All concur. (Review of a determination of the Commissioner of Motor Vehicles suspending petitioner’s driver’s license.) Present — Taylor, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.  