(dissenting). I dissent and vote to affirm. On the testimony there was an issue of fact as to the negligence of defendant which the jury resolved in favor of the plaintiff. While the use of the term “ substantial ” might not have been the most apt expression, the charge taken as a whole, as it must be, fairly informed the jury of the applicable principles. The use of the term “ substantial ” occurred during the giving of further instructions to the jury. The original charge with respect to negligence, contributory negligence and proximate cause had not been excepted to. The only exception was with respect to intoxication. The additional instructions did not favor either party. The jury was instructed that liability could be imposed upon the defendant only if his negligence was a substantial factor in causing the plaintiff’s injury. Conversely, recovery by the plaintiff was barred if her negligence, however slight, was a substantial factor (see, Restatement, 2d Torts, §§ 430, 431, comment a, also §§ 432, 433; cf. PJI 2:70). It was not error to exclude the alleged statement of plaintiff as to her daily quantitative capacity for alcohol. There was no proof that plaintiff was intoxicated at the time of the accident, nor was there any competent evidence that she had imbibed to the extent of her potential, assuming the alleged statement to be correct. Most important, however, is the fact that there is absolutely no evidence that her alleged proclivity for drink, if it be such, contributed in any way to the accident. In fact the defendant’s *327own testimony was to the effect that plaintiff was walking straight in her journey across the street, and that she was in the pedestrian crosswalk at the time of the impact. In fact it was conceded that plaintiff was crossing on the northerly crosswalk of the street at 156th Street and Amsterdam Avenue.
As to the objections with respect to the hospital entries, the summary note made more than one month after plaintiff’s discharge as a patient from the hospital was properly excluded. It included a portion of the admission note which was pure hearsay and based entirely upon information given by plaintiff’s sister and daughter including their belief as to whether plaintiff had any solid food intake between lunchtime and the time of the accident, approximately 7:30 p.m. Nor was there any blood test to ascertain the percentage of alcohol present. In light of the nature and extent of the injuries suffered, such statements could hardly be considered germane to plaintiff’s diagnosis and treatment (Williams v. Alexander, 309 N. Y. 283).
Steuer, Tilzer and Macken, JJ., concur with Eager, J.: Stevens, J. P., dissents in opinion.
Judgment reversed upon the law and the facts, and in the interests of justice, and a new trial ordered, with $50 costs to the appellant to abide the result of the final judgment in the action.