Opinion
March 8, 1971
In a negligence action to recover damages for personal and property injuries, loss of services, etc., plaintiffs appeal from a judgment of the Supreme Court, Queens County, entered September 30, 1969, in favor of defendant upon a jury verdict. Judgment reversed, on the law, without costs, and new trial granted. The court has not considered the questions of fact, none having been raised by appellant on this appeal. The infant plaintiff was injured when the bicycle he was riding came into contact with a car driven by defendant. On the trial the plaintiff father, who himself was not an eyewitness to the accident, testified that after the accident defendant made certain liability admissions to him. No one else was present at the time these alleged admissions were made. Over vigorous objection, defendant's counsel was permitted to introduce into evidence a photostat of a police accident report made after the accident by an officer who was not an eyewitness and which was based on a version of the accident received from the plaintiff father after the alleged admissions made by defendant. The theory was that the absence of any statement in the accident report to the effect that the father had claimed such admissions was probative of the fact that the father had not told the officer of them and that he had not done so because they had never really been made to him. In our opinion the accident report was hearsay and inadmissible for the purpose offered ( Johnson v. Lutz, 253 N.Y. 124; Kelly v. Wasserman, 5 N.Y.2d 425). Even assuming some slight probative value of the theory presented, it created a collateral issue which confused the main issue, may have misled the jury, and created a danger of undue prejudice to plaintiffs ( People v. Harris, 209 N.Y. 70; Richardson, Evidence [9th ed.], § 151). Rabin, P.J., Hopkins, Martuscello and Latham, JJ., concur; Munder, J., concurs, with the following separate memorandum: It is my view that the police accident report was not hearsay in the context of this case. It was offered not for the truth of facts contained in it, but on cross-examination to impeach the plaintiff father by showing he had failed to report what he claimed or what he could reasonably be expected to report. The report was not offered as a testimonial assertion and thus the hearsay rule has no application (Richardson, Evidence [9th ed.], § 209; see, also, §§ 206, 211). However, I believe it was error to admit it into evidence without a proper foundation being laid. This could have been done by defendant calling the police officer who prepared the report to testify concerning its preparation, e.g., who was present, what was said and what if anything was omitted from the report.