
    In the Matter of Peter G. Tierney, Petitioner, against James R. Macduff, as Commissioner of Motor Vehicles, Respondent.
   Determination annulled, without costs, and matter remitted to the Commissioner of Motor Vehicles to hold a new hearing. Memorandum: The only witnesses sworn on this hearing were the petitioner and his passenger. We agree with the referee that their story was fantastic and does not account for the accident or the damages shown in petitioner’s motor vehicle report. The police report referred to by the referee in his “ Summary ” was not in evidence and cannot be made the basis of his decision. On a rehearing the police officer who saw the accident or arrived shortly after the accident occurred may be called as a witness to testify as to the factual situation at that time. Petitioner’s motor vehicle report should also be offered and received in evidence. It may well be that with such additional evidence proper grounds for revocation may be shown. On the record before us there is insufficient competent evidence upon which to sustain the finding of reckless driving; in fact, if we do not believe the testimony of the witnesses, there is nothing to explain the happening of the accident. All concur. (Proceeding to annul a determination of the Commissioner of Motor Vehicles which revoked petitioner’s automobile driver’s license, which proceeding was transferred to the Appellate Division for determination by order of Monroe Special Term.) Present — Taylor, P. J., McCurn, Vaughan, Piper and Wheeler, JJ.  