Opinion
Argued October 10, 1956
Decided November 15, 1956
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, HARRY E. SCHIRICK, J.
Albert Cohn for appellant.
John J. Scully for respondent.
In each action: Judgment of the Appellate Division and that of the Trial Term reversed and the complaint dismissed as against defendant Herpst, with costs in all courts, upon the ground that there is no testimony of sufficient probative quality and substance to justify an inference that the decedent Zazynski was, in fact, driving the Beeman car at the time of the collision. Conjecture and surmise may not be used as a substitute for such testimony ( Towne v. Bunce, 307 N.Y. 868). No opinion.
Concur: CONWAY, Ch. J., DESMOND, DYE, FULD, FROESSEL, VAN VOORHIS and BURKE, JJ.