JAMES D. HURLEY, J.

This is an appeal from a conviction of the defendant before a Justice of the Peace in the town of Ontario, Wayne County, New York, on a charge of passing a stop sign at the intersection of Route 350 and Ridge Road in Ontario Center, New York.

It appeared upon the trial that at the time of the alleged offense, the stop sign was located 175 feet north of the intersection, but that the same had been moved between the date of the alleged offense and the time of the trial to a point 90 feet north of the intersection.

The appellant contends that the People failed to prove that the stop sign was erected in accordance with the requirements of section 95-d Veh. Traf. of the Vehicle and Traffic Law and the Rules of the State Traffic Commission, in that it was not located at or near the intersection, or that the sign was properly placed under the direction of the State Traffic Commission. Appellant also contends that under all the facts as developed upon the trial, the conviction should be reversed.

Without attempting to establish the correct distance at which a stop sign should be placed from the intersecting road or highway, since obviously the State Traffic Commission should have a reasonable amount of discretion in considering the physical facts in determining the proper position of the sign, it is the opinion of the court that the People have failed to prove beyond a reasonable doubt that the stop sign was a proper sign and properly placed and that the defendant was guilty of the offense charged.

The conviction should therefore be reversed.

Submit order accordingly.