
    In the Matter of James P. Sullivan, Respondent, against Joseph P. Kelly, Individually and as Commissioner of Motor Vehicles of the State of New York, Appellant.
    Argued March 3, 1960;
    decided March 31, 1960.
    
      
      Louis J. Lefkowits, Attorney-General (Philip J. Fitzgerald and Paxton Blair of counsel), for appellant.
    I. Petitioner’s claim that he was convicted of speeding only is without substance. In any event, his dispute, if any, in this respect does not lie in this proceeding against the Commissioner of Motor Vehicles. (Matter of Christoff v. Kelly, 8 A D 2d 687; Matter of Banks v. Kelly, 6 A D 2d 512; Matter of La Victoire v. Kelly, 5 A D 2d 548; Matter of Gross v. Macduff, 284 App. Div. 786.) II. There was substantial evidence before the Commissioner that-petitioner was convicted of operating a motor vehicle while under the influence of intoxicating liquor. (Matter of Moore v. Macduff, 309 N. Y. 35; Matter of Bouchard v. Kelly, 7 A D 2d 774, 6 N Y 2d 705; Matter of Coleman v. Kelly, 12 Misc 2d 116.)
    
      Philip D. O’Donnell for respondent.
    The determination of the Commissioner of Motor Vehicles was not based on substantial evidence. (Consolidated Edison Co. v. Labor Bd., 305 U. S. 197; Matter of Stork Restaurant v. Boland, 282 N. Y. 256; Matter of Phinn v. Kross, 8 A D 2d 132; Matter of Moore v. Macduff, 309 N. Y. 35; Matter of Newbrand v. City of Yonkers, 285 N. Y. 164; Matter of La Victoire v. Kelly, 5 A D 2d 548; Matter of Bouchard v. Kelly, 7 A D 2d 774; State v. Thomas, 79 Idaho 372.)
   Per Curiam.

The Vehicle and Traffic Law, in section 71 (subd. 2, par. [b]), requires the revocation of an operator’s license for the conviction outside the State of “ an offense consisting of operating a motor vehicle or motor cycle while under the influence of intoxicating liquor ’ ’. In the case before us, there can be no possible doubt that the petitioner was convicted in Massachusetts of operating a motor vehicle while under the influence of intoxicating liquor in violation of section 24 of chapter 90 of the General Laws of Massachusetts. In the light of all the documents before respondent Motor Vehicle Commissioner and of the Massachusetts statute itself, of which judicial notice could be taken, it is of no significance that the Massachusetts “ Abstract of Court Record of Violation of Motor Vehicle Laws ” simply recited in abbreviated form that the petitioner had been convicted of “ Operating under the influence ”. The Commissioner was required, therefore, to revoke the petitioner’s license.

The present case differs significantly from Matter of Moore v. Macduff (309 N. Y. 35) in that, in the latter, there was doubt, because of alternative grounds provided in the Canadian statute, whether the petitioner had been convicted of driving while his ability to do so had been impaired by “ alcohol ” or by a “ drug ”.

The orders should be reversed and the petition dismissed.

Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster concur.

Order reversed and determination of the Commissioner of Motor Vehicles reinstated, without costs.  