(dissenting). I see no error here, and no reason for retrying this simple question of fact.
Plaintiff, for his own convenience, chose to prove his injuries and the hospital treatment he received therefor, by putting a hospital record in evidence and without calling as a witness the physician who made the entries. In so doing, he of course vouched for the accuracy and regularity of that record. Defendant made no objection hut in his turn offered in evidence so much of the same hospital record as showed a statement to the hospital physician by plaintiff that the accident had occurred in a manner quite different from that testified to at the trial by plaintiff. Plaintiff objected to any such “history” going into evidence. His alleged ground of objection was stated in the one word: “hearsay”. That of course was meaningless in- this context. An undoubted exception to the “ hearsay ” rule makes admissible extrajudicial declarations against interest (Reed v. McCord, 160 N. Y. 330, 341). Plaintiff’s declaration to the hospital physician as to the way the accident happened was directly probative evidence of a main fact in issue (Gangi v. Fradus, 227 N. Y. 452). It is, of course, conceivable (hut unlikely) that by plaintiff’s use of the word “hearsay” he referred to the failure of defendant to call as a witness the physician who had written up the notes. But plaintiff himself had put into evidence the (helpful to him) parts of that identical paper without calling the physician. Surely, plaintiff could not then demand that the other party prove the authenticity of the very record plaintiff had himself presented to the court. Since plaintiff had been allowed to prove by the record alone the diagnosis and treatment of his injuries, it would be absurd to forbid defendant using the same record, written in the same handwriting by the same physician at the same time, to prove an equally relevant, competent and material fact, that is, that *290plaintiff had stated to the physician that his injuries were caused in the manner asserted by defendant.
It follows from the above that section 374-a of the Civil Practice Act, our statutory rule as to admissibility of records made in the regular course of a business, has little or nothing to do with this case. What we have here is an admission against interest, proved not by the oral testimony of the person to whom it was made but by an authentic document already vouched for to the court by the opposing party himself.
But let us suppose that this is a section 374-a case. “ Hospital records concededly are included within the records to which section 374-a of the Civil Practice Act is applicable ” (People v. Kohlmeyer, 284 N. Y. 366, 369, 370). The physician who made the entries need not be called as a witness (Meiselman v. Crown Heights Hosp., 285 N. Y. 389, 396, 397). True, as Judge Fuld points out, this court has not yet directly decided whether the section 374-a makes admissible that part of a hospital record which gives the history of the injury. But why should this court not adopt a practical and useful construction, rather than a narrow and unnecessarily restrictive one? And the statute itself seems to furnish the answer: “ Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of said act, transaction, occurrence or event, if the trial court shall find 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.” There is no reason why the “ history ” part of a hospital record, obtained not from unidentified persons but from the patient himself, should not be used in evidence against the patient. Of course, the writing must have been made in the regular course of the hospital’s business and it must have been the regular course of the business of the hospital to make such entries. But in this case plaintiff did not object because of any failure to prove those requirements (see Meiselman v. Crown Heights Hosp., 285 N. Y. 389, 397, supra). Indeed, he could not, after himself bringing the record to court, reasonably urge that it was not the regularly made record of this hospital. And *291he knew, as we all do, that an examining physician, especially in a hospital receiving department, always inquires as to the cause of a trauma. Certainly, in the absence of any suspicious circumstance, it is not up to the courts to decide just how thoroughly a qualified physician may delve into the cause or occasion of the injuries he is diagnosing and treating. Anyhow, all this is by the statute’s own words committed to the trial judge’s discretion. It is he who is charged with passing on the question of whether the entry was regularly made. Here, no one suggested that it was not so made or called for proof that it was. The trial justice, therefore, had no reason for excluding it, particularly since there was no suggestion that the physician or the hospital had any interest in the case or any possible reason for falsifying these records.
This was a routine trial of a simple issue of fact. Plaintiff said the accident happened one way, defendant said that it happened another way. A hospital book brought to court by plaintiff showed that he himself had described the occurrence in the way that defendant described it. Plaintiff denied that he had made such a statement at the hospital. The jury settled that dispute. It is most unfortunate, especially in these days of congested calendars, that such a case must now be retried.
The judgment shbuld be affirmed, with costs.
Conway, Ch. J., Fboessel and Van Voobhis, JJ., concur with Fuld, J.; Desmond, J., dissents in an opinion in which Dye and Bubke, JJ., concur.
Judgments reversed, etc.