
    The People of the State of New York, Respondent, v. Martin Eviston, Appellant.
    First Department,
    June 23, 1930.
    
      
      Mitchell D. Schweitzer of counsel [Rubin & Schweitzer, attorneys], for the appellant.
    
      Michael J. Driscoll, Deputy Assistant District Attorney, of counsel [Thomas C. T. Crain, District Attorney], for the respondent.
   Sherman, J.

The evidence does not suffice to establish beyond a reasonable doubt that defendant was guilty of driving an automobile “ while in an intoxicated condition ” in violation of the Vehicle and Traffic Law, section 70, subdivision 5. (See People v. Weaver, 188 App. Div. 395, 400/ 401.)

The judgment should be reversed, the information dismissed, fine remitted and license restored.

McAvoy and O’Malley, JJ., concur; Merrell and Pinch, JJ., dissent and vote to affirm.

Judgment reversed, the information dismissed, the fine remitted and license restored.  