This is an appeal from an order of the Oneida Special Term dismissing the petition in an article 78 proceeding to review the determination of respondent, as Commissioner of Motor Vehicles, revoking petitioner’s license to operate a motor vehicle and suspending his certificate of registration. It appears from the record that three times within a period of eighteen months, all subsequent to July 1, 1953, petitioner was convicted of speeding contrary to section 56 of the Vehicle and Traffic Law. The revocation of his operator’s license was, therefore, mandatory (Vehicle and Traffic Law, § 71, subd. 2, par. [c]). Petitioner now asserts that on the second occasion he was not given the warning allegedly required by section 335-a of the Code of Criminal Procedure. As to the first and third convictions there is no claim that the warning prescribed by the section was not given by the Justice at the time of defendant’s arraignment.
Prior to the amendment of section 335-a in 1953, it had been held that such warning need be given only upon the arraignment of the offender upon a third charge of speeding, and not upon the first two (Matter of Johnston v. Fletcher, 86 N. Y. S. 2d 690, affd. 275 App. Div. 802, affd. 300 N. Y. 470; see, also, Matter of Ross v. Macduff, 309 N. Y. 56, and Matter of Long v. Macduff, 284 App. Div. 61). Petitioner insists that that construction has been displaced by chapter 288 of the Laws of 1953, entitled “ An Act to amend the code of criminal procedure, in relation to information to be given a defendant charged with violating a traffic law or ordinance.” We find nothing in that amendment expressive of a purpose to alter the construction judicially placed upon section 335-a as it read prior to 1953. Indeed, the memorandum submitted by the State Bureau of Motor Vehicles at the time of the 1953 amendment indicates its concern with the form, of warning to be given pursuant to the statute and not with the time or occasion of such warning (1953 N. Y. Legis. Annual p. 266). The amendment provides for a uniform warning to be read in all cases in which warning is required, in place of the individualized advice previously considered necessary, but so far as I can see, it effects no other change in the statute.
I dissent and vote for affirmance of the order.
All concur, except Vaughan, J., who dissents and votes for affirmance in opinion in which Williams, J., concurs.
Present — McCurn, P. J., Vaughan, Wheeler, Williams and Bastow, JJ.
Order reversed on the- law, with $50 costs and disbursements, and matter remitted to the Special Term for further proceedings in accordance with the opinion.