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It is a proper qualification of the rule admitting a writing or record, whether in the form of an entry in a book or made as a memorandum or record of any act, transaction, occurrence or event, that the account must have been made in the ordinary course of business, and that it should not be extended so as to admit a mere private memorandum, not made in pursuance of any duty owing by the person making it, or when made upon information derived from another who made the communication casually and voluntarily, and not under the sanction of duty or other obligation.
An accident occurred in which a motorcyclist was killed when he collided with defendants' truck. Litigation ensued where plaintiff's estate sued defendants for the loss of their family member. There was a sharp conflict in the testimony in regard to the circumstances under which the collision took place. A policeman's report of the accident filed by him in the station house was offered in evidence by the defendants under section 374-a of the Civil Practice Act and was excluded. The sole ground for reversal urged by the defendants is that said report was erroneously excluded.
Was the exclusion of the policeman's report and testimony as evidence proper?
On appeal, the court upheld the judgment on the grounds that the policeman's report had not been made in the regular course of business, as required under N.Y. Civ. Prac. Act § 374-a. Specifically, defendants' offered introduction of a memo concerning the accident was based on hearsay statements of third persons at the scene of the accident. Accordingly, it was properly excluded as hearsay evidence.