
    In the Matter of John Novesky, Petitioner, against James R. Macduff, as Commissioner of Motor Vehicles of the State of New York, Respondent.
   Proceeding under article 78 of the Civil Practice Act to review the determination of the Commissioner of Motor Vehicles, made December 26, 1951, suspending chauffeur’s license of petitioner for thirty days for violation of paragraph (e) of subdivision 3 of section 71 of the Vehicle and Traffic Law. Determination annulled on the law and the facts, without costs. The only evidence of the cause of the accident was that petitioner momentarily closed his eyes. There is no proof that he knew or should have known that he was about to become drowsy. Under the circumstances, a finding of gross negligence or reckless disregard for life and property of others was not justified. (Matter of J enson V. Fletcher, 277 App. Div. 454, affd. 303 N. Y. 639; Matter of Crawford v. Fletcher, 278 App. Div. 1017.) Johnston, MaeCrate and Schmidt, JJ., concur; Carswell, Acting P. J., and Wenzel, J., dissent and vote to affirm.  