Opinion
May 31, 1955.
In an action to recover damages for personal injuries sustained by the infant plaintiff and for medical expenses and loss of services by his mother, plaintiffs appeal from a judgment in favor of defendants upon a jury verdict. Judgment reversed on the law and new trial granted, with costs to appellants to abide the event. The admission into evidence of the police report concerning the accident was prejudicial error. It was offered by the defendant as affecting the credibility of the police officer, but since it was based on hearsay statements obtained by him at the scene of the accident after its occurrence and did not purport to be an assertion of fact of the officer's own knowledge, it was not contradictory of anything to which he testified. The facts contained in the said report were obtained from the defendant driver of the truck and were in accord with the officer's testimony upon the trial. The only thing the report might contribute to prove is that the police officer did not make a complete report; to the jury, however, it might constitute an official determination after investigation by the police officer. Wenzel, Beldock and Murphy, JJ., concur; Nolan, P.J., and Ughetta, J., dissent and vote to affirm, being of the opinion that the police report was properly received in evidence for the purpose of impeachment. Such proof need not be direct and positive contradiction of a witness. It is enough if it be inconsistent with testimony, or tend to prove different facts. ( Larkin v. Nassau Elec. R.R. Co., 205 N.Y. 267, 269; Judson v. Fielding, 227 App. Div. 430, affd. 253 N.Y. 596; McCoy v. Gorenstein, 282 App. Div. 984; Kesten v. Forbes, 273 App. Div. 646; People v. Longebodi, 154 App. Div. 793.)