
    Luke E. W. Johnson, Respondent, v. Edith Beyer, as Administratrix of the Estate of William E. Beeman, Deceased, Defendant, and Mable Herpst, as Administratrix of the Estate of John F. Zazynski, Deceased, Appellant. Luke E. W. Johnson, as Executor of Bertha M. Johnson, Deceased, Respondent, v. Edith Beyer, as Administratrix of the Estate of William E. Beeman, Deceased, Defendant, and Mabel Herpst, as Administratrix of the Estate of John F. Zazynski, Deceased, Appellant.
    Argued October 10, 1956;
    decided November 15, 1956.
    
      
      Albert Cohn for appellant.
    
      John J. Scully for respondent.
   In each action: Judgment of the Appellate Division and that of the Trial Term reversed and the complaint dismissed as against defendant Herpst, with costs in all courts, upon the ground that there is no testimony of sufficient probative quality and substance to justify an inference that the decedent Zazynski was, in fact, driving the Beeman car at the time of the collision. Conjecture and surmise may not be used as a substitute for such testimony (Towne v. Bunce, 307 N. Y. 868). No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.  