(dissenting). I dissent. Defendant was charged with violation of section 60 of article 4 of the Traffic Regulations adopted by the Traffic Commissioner of the City of New York for having operated a motor vehicle on Belt Parkway in Kings County, city of New York, at a rate of speed greater than thirty-five miles per hour, the rate duly posted on signs. Section 60 of article 4 of said regulations provides that the speed limit for *27driving any vehicle is “ (a) 25 miles per hour, except where signs authorized by proper authority are posted indicating a greater or lesser speed ’ ’. There is no evidence in this record whether or not any signs were posted along Belt Parkway nor that any particular maximum speed was indicated.
At the close of the People’s case, after defendant had made an appropriate motion to dismiss, the Magistrate stated:
“ I am not familiar with the location of the signs, but the Court takes judicial notice that the speed on Belt Parkway between East 14th and West 2nd Street, is thirty-five miles an hour and that signs are posted along that Parkway by the Commissioner of Parks of the City of New York.
“ Defendant’s Counsel: Exception.”
Defendant was found guilty and fined $25 or, in default of payment, was given ten days’ imprisonment. Of course the Magistrate had no right to take judicial notice that signs are posted indicating a different speed than twenty-five miles per hour. Moreover, it is clear that he found defendant guilty of violating the statute referred to in the complaint. That statute contains an exception which it was the duty of the prosecutor to negative (People v. Smith, 299 N. Y. 707); since he did not do so, the People failed to prove the allegations of this complaint, and defendant was entitled to an acquittal. No reference whatsoever was made to subdivision c of section 53 of article IV of the rules and regulations, and reliance thereon by the prosecutor on appeal was merely an afterthought (People v. Costello, 305 N. Y. 63)
The judgment of conviction should be reversed and the information dismissed.
Lewis, Ch. J., Conwat, Desmond, Dte and Fuld, JJ., concur with Van Voorhis, J.; Froessel, J., dissents in opinion.
Judgment affirmed.