I dissent and vote to annul the determination of the commission revoking the petitioner’s bingo license.
The revocation was based upon the commission’s conclusion that petitioner had prepared false reports of its receipts. In my opinion that conclusion does not rest upon the requisite “ substantial evidence ” required in an administrative proceeding.
Falsity of the reports was not demonstrated by any direct evidence. It was based solely upon circumstantial evidence. The use of circumstantial evidence to establish the falsity of the reports is permissible. However, the use of circumstantial evidence is subject to the rule that inferences which are equally consistent with the existence or nonexistence of the fact to be proved must be rejected. Stated another way, the inference may be used only when it is a probable or natural explanation of the fact and a more probable and natural one than the other explanation, if any. (Engel v. United Traction Co., 203 N. Y. 321.)
What did the commission rely upon to support its finding that the petitioner had prepared false reports of its income? There was proof submitted that the reports with respect to the income on each of 16 nights (when there was no inspection by respondent’s representatives) were less than was reported on each of 4 nights when inspectors were present. On this proof, together with an expert’s opinion, the conclusion was reached that the reports made on the 16 nights had been falsified. I do not think that the inference of falsity was a permissible one based upon the evidence adduced. I cannot agree that because on the 4 inspected occasions the total and per capita receipts were higher than on the 15 noninspected occasions, it may reasonably be concluded that the latter were not accurately reported. Taking cognizance of the many obvious variables which may affect attendance or the amount of money spent by the players, the limited statistics do not constitute a valid basis for the conclusion reached. A more substantial degree of proof should be required *886to permit a finding of falsity, with the consequent serious penalties to the petitioner.
1 think that the inferences drawn by the commission are purely speculative and are not supported by the proven facte. Accordingly, I conclude that the finding of the commission is not based upon the “ substantial evidence ” as is required to support its determination.
It must be noted that the method adopted by the commission in this case to detect fraud leaves much to be desired. There is no need for the commission to rely upon such a circuitous and indirect method. Surely, there must be some more direct and more positive manner in which false reporting may be detected.
Botein, P. J., Eager and Witmer, JJ., concur in Memorandum by the Court; Rabin, J., dissents in opinion in which Valente, J., concurs.
Determination of respondent, State Bingo Control Commission, confirmed and petition dismissed, without costs and without disbursements.