
    Julio Morales, Respondent, v. Pablo Rivera, Defendant, and Siegfried Weinman, Appellant.
   In this two-car collision ease there is an issue of fact. It remains a question for the jury whether defendant-appellant failed to exercise due care in the circumstances in which his moving automobile struck the stationary automobile in which plaintiff was a passenger. (Delano v. Duhart, 14 A D 2d 739; Ortiz v. Knighton, 14 A D 2d 679; Hajder v. G & G Moderns, 13 A D 2d 651.) The statement attributed to the State Trooper is merely hearsay since the trooper’s affidavit is not attached. Moreover, the alleged admission to the State Trooper is not conclusive on the issues in the case. Defendant-appellant is entitled to contradict the effect of such admission and the credibility of such contradiction may not be determined on the affidavits alone. Concur — Botein, P. J., Breitel, Babin, Stevens and Eager, JJ.  