(dissenting). On October 10,1948, an automobile driven by petitioner-respondent, then eighty-one years old, injured a child. On May 17, 1949, pursuant to authority contained in section 71 of the Vehicle and Traffic Law, respondent-appellant, the State Commissioner of Motor Vehicles, served on petitioner a notice requiring the latter to attend a hearing called for the purpose of investigating the accident and of determining whether petitioner’s license as an automobile operator should be suspended or revoked. The notice of hearing stated that it was the practice of the bureau to hold such a hearing “ where the operator involved in an accident is sixty-five years of age or over.” That hearing, held on June 2,1949, resulted in a report to the commissioner, by the examiner who conducted it, that petitioner “ seems to be in good condition despite his advanced years ” but that the examiner believed that petitioner should be required to take a road test.” (Some importance seems now to be attached to the fact that no formal notice was ever given to petitioner that this section 71 hearing was closed — we see no necessity for, or utility of, any such notification.)
What the commissioner did send to petitioner, after that section 71 hearing, was a letter dated June 14, 1949, informing petitioner that he would have to submit to a road test on June 24,1949. The test was given him on that date, he failed to pass it, and his driving license was revoked. As the result of a litigation with the bureau which petitioner then commenced, that revocation was set aside by the Appellate Division (277 App. Div. 828); petitioner was, a year later, given another such test, and again failed. Again the Appellate Division set aside the revocation, remitting the matter to the commissioner for u a further hearing ” and for the making of “ findings ” (278 App. Div. 28, 31). The commissioner was, understandably, reluctant to continue the testing process indefinitely, and so appealed to this court, being required on this appeal, since the order was nonfinal, to file a stipulation for order absolute, in case of affirmance. Thus, the affirmance which this court is about to order will mean that petitioner, now eighty-four years old, continues *444to hold an automobile operator’s license, although he has twice been unable to pass the usual, routine, driving license tests, the necessity for which arose from his advanced age, and which had been confirmed by petitioner’s own statements that when, in daylight on a country road, his car injured a child, he did not even know of the occurrence until he looked back and saw people picking up the child from the road.
Of course, the commissioner, after this decision by us, can, we assume, order that still another road test be given to petitioner (three years after the accident) but we see no reason for setting aside the first two determinations. We do see the compelling necessity of a workable system of operator-license control, in a State where there are 4,000,000 such licenses outstanding and where 100,000 accidents (30,000 involving pedestrians and 2,000 fatal) were reported in 1950 (see N. Y. Legislative Manual, 1951).
Section 71 of the Vehicle and Traffic Law, under which petitioner was originally notified to attend a hearing, and under which that hearing was held, specifically authorizes the commissioner to take such action. That section 71 hearing was duly held, but it resulted in no revocation or suspension of petitioner’s license, and in no way prejudiced him or affected his rights. However, the hearing examiner did consider it advisable that petitioner be subjected to a road test. Authority for such “ reexamination of licensees ” is given the commissioner by subdivision 8 of section 20 of the same Vehicle and Traffic Law. In plainest language that subdivision empowers the commissioner, if he “ has reasonable grounds to believe that a person holding a license issued pursuant to this section is not qualified to operate a motor vehicle,” to “ require such person to submit to an examination to determine his qualifications.” Petitioner has now had two such re-examinations, and has not passed either of them. Each time the examiner’s report showed him guilty of serious driving faults, including improper turns, improper speed at intersections, delayed braking, inattention to traffic signs and lights, etc. Such determinations by a competent licensing authority can be upset by the courts only on a showing that they were made arbitrarily, capriciously, maliciously or corruptly (see Matter of Small v. Moss, 277 N. Y. 501, 507; Matter of Stracquadanio v. Department of Health, 285 *445N. Y. 93, 95, 96). There is no possible basis in this record for so condemning these re-examination results, and we do not understand that anyone claims there is. Surely this petitioner has not shown a clear, legal right to hold an operator’s license. The courts, therefore, have no power to set those results aside.
True, after the Appellate Division had annulled the first revocation, and after the second re-examination had been given and failed, petitioner in his next petition to the Appellate Division, asserted that he had in fact driven his car safely and properly during the second re-examination, and produced affidavits to that effect, made by two persons who had accompanied him in his car during that latest road test. But the opinions of those persons as to petitioner’s competency were no proof of arbitrariness or capriciousness of the examiner, and so raised no triable issue of fact for any court (Matter of Marburg v. Cole, 286 N. Y. 202, 211). The commissioner, not the courts, examines and licenses operators, and for a court or the commissioner himself to hold a later “ hearing ” to review the announced result of a road test is to do something not contemplated by any statute, and something which, we submit, would defeat the purpose of the road test. Decisions dealing with court review of findings of fact made on disputed testimony at hearings required by statute, have nothing to do with a situation like this.
As we understand this court’s decision on this appeal, however, the Appellate Division’s annulment of the commissioner’s actions is being affirmed here, not because of any supposed necessity for hearings or findings by the commissioner, but for an entirely different reason. This court’s reason for affirmance is based solely on the fact that the commissioner, after notifying petitioner of, and holding, a hearing under section 71, then proceeded, without formal notice of termination of that section 71 hearing, to order a road test under section 20. But those statutes authorize and direct the commissioner to do both those things, independently of each other or both at once, and there is no sign that anyone was confused or prejudiced or bothered by the way in which the commissioner performed these simple, routine duties assigned to him by the Legislature.
The order should be reversed and the proceeding dismissed, with costs in all courts.
*446Lewis, Conway and Dye, JJ., concur with Froessel, J.; Desmond, J., dissents in opinion in which Loughran, Ch. J., and Fuld, J., concur.
Ordered accordingly.