170 N.E. 517 (N.Y. 1930)
The plaintiff brought this action to recover damages for the wrongful death of the plaintiff’s intestate.1 The intestate was killed when his motorcycle came into collision with the defendants’ truck at a street intersection. There was a sharp conflict in the testimony in regard to the circumstances under which the collision took place.2
A policeman’s report of the accident was prepared by an officer who was not present at the time.3 The memorandum was made from hearsay statements of third persons who happened to be present at the scene of the accident when he arrived.4 It does not appear whether they saw the accident and stated to him what they knew, or stated what some other persons had told them.5 The report was filed by the policeman in the station house.6
The defendants offered the report in evidence at trial under section 374-a of the Civil Practice Act. The trial judge excluded the report. The sole ground urged for reversal on appeal was the exclusion of the report.7
Whether a policeman’s report of an accident, prepared from hearsay statements of third persons who were not under a duty to report, is admissible under section 374-a of the Civil Practice Act?8
Section 374-a of the Civil Practice Act provides that any writing or record made as a memorandum or record of any act, transaction, occurrence or event shall be admissible in evidence if the trial judge finds that it was made in the regular course of any business and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event, or within a reasonable time thereafter.9 The purpose of the Legislature in enacting section 374-a was to permit a writing or record, made in the regular course of business, to be received in evidence without the necessity of calling as witnesses all of the persons who had any part in making it, provided the record was made as a part of the duty of the person making it, or on information imparted by persons who were under a duty to impart such information.10 It was not intended to permit the receipt in evidence of entries based upon voluntary hearsay statements made by third parties not engaged in the business or under any duty in relation thereto.11
No. The policeman who made the report was not present at the time of the accident.12 The memorandum was made from hearsay statements of third persons who were not under any duty to impart the information as part of a business.13 The report therefore does not qualify for admission under section 374-a of the Civil Practice Act.14
The report was properly excluded and the judgment should be affirmed.15