
    In the Matter of the Application of Andre C. Muelenaer, Petitioner, against Charles A. Harnett, Commissioner of Motor Vehicles, and John J. Welsh, Referee, in the Bureau of Motor Vehicles, Department of Taxation and Finance, State of New York, Respondents.
   Certiorari to review order No. 422666 of the Commissioner of Motor Vehicles, which order suspended for fifteen days the license of petitioner after a hearing before a referee of the Bureau of Motor Vehicles and a decision finding the petitioner guilty of violating section 58 of the Vehicle and Traffic Law. Determination annulled and certiorari proceeding sustained, with fifty dollars costs and disbursements. An examination of the return discloses that the referee must have accepted the evidence of the driver of the truck and his companion. Their evidence is incredible as a matter of law. Their testimony that at least twenty east-bound cars on Merrick road, two abreast, stopped at the west line of One Hundred and Thirtieth street and Merrick road because the light at Merrick road and Farmers boulevard turned red for traffic on Merrick road is ridiculous and unbelievable. Farmers boulevard intersects Merrick road one hundred feet west of One Hundred and Thirtieth street. Consequently, east-bound cars would have passed the light before they came to the One Hundred and Thirtieth street intersection. It is conceded that there are no signs, lines on the pavement, or other signals that require east-bound cars on Merrick road to stop at One Hundred and Thirtieth street. If we accept the testimony of these two witnesses, we must find that these ears stopped because a light behind them turned red. The disinterested testimony of the officer called corroborates the testimony of the petitioner and his witnesses and there is not any believable credible evidence in the record to sustain the determination. Hagarty, Davis, Johnston, Taylor and Close, JJ., concur.  