
    In the Matter of Dennis J. McKernan, Petitioner, against Joseph P. Kelly, as Commissioner of Motor Vehicles, Respondent.
   This is a proceeding brought pursuant to article 78 of the Civil Practice Act to review a determination of the Commissioner of Motor Vehicles. The matter was transferred to this court pursuant to the Civil Practice Act by order dated April 24, 1959. The Commissioner after a hearing revoked the license of the petitioner in accordance with the provisions of the Vehicle and Traffic Law (§ 71, subd. 3, par. [e]), for gross negligence in the operation of a motor vehicle. The accident occurred on Route 38, a two-lane road, in the Town of Owego on April 16, 1958 when the automobile operated by the petitioner left the road. He was accompanied by two passengers, one being killed, the other injured. At the hearing it developed that the petitioner had left his home about 7:45 p.m. ; went to a tavern where he had four highballs; that while traveling the road in question about 12:30 a.m. he attempted to make a left turn, while driving about 45 miles an hour, the automobile left the road and travelled a distance of 244 feet, coming in contact with a tree stump, a fence, guardrails, two trees and a telephone pole which was snapped off two feet from the ground and about 15 feet from where the vehicle stopped. The surviving passenger testified as to the manner in which the automobile was operated by petitioner and additional testimony was given by police officers. There was substantial evidence from which the hearing Referee could determine that the automobile was being operated in violation of the section referred to herein. In the findings, there was reference to statements which do not appear in the testimony, particularly the suggestion that petitioner relinquish control of the car. We are advised that such statements may have come from a police officer’s report which was not part of the record. While this may constitute error, it was not of such a substantial nature as to overcome the finding made by the Referee. Such finding could have been made without reference to this testimony. Under the circumstances we are unable to say as a matter of law there was not sufficient evidence to sustain the findings herein. Determination unanimously confirmed, without costs. Present — Foster, P. J., Bergan, Coon, Herlihy and Reynolds, JJ.  