Johnson v. Beyer

139 N.E.2d 149, 2 N.Y.2d 762

Opinion

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.