Opinion
October 18, 1971
In a negligence action to recover damages for personal injuries, plaintiffs appeal from a judgment of the Supreme Court, Nassau County, entered October 31, 1969, in favor of defendant upon a jury verdict at a trial of the issues of liability only. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The questions of fact have not been considered. Over objection, defense counsel was permitted to introduce into evidence a police accident report made after the accident by an officer who was not an eyewitness and based upon information given to him. This was hearsay and inadmissible under Johnson v. Lutz ( 253 N.Y. 124). That portion of the trial court's charge to the jury relating to an understanding of sections of the Vehicle and Traffic Law by an infant five years and ten months of age was also prejudicial error ( Dugan v. Dieber, 32 A.D.2d 815). Rabin, P.J., Hopkins, Munder, Gulotta and Brennan, JJ., concur.