Plaintiff's car collided with the defendant's car on the Albany-Schenectady road at about 2:30 in the morning, May 5, 1946. Plaintiff testified that defendant's car was backing out of premises of the Hawaii Club without lights, and that he did not see it until he was within three or four feet of it. The verdict was against the weight of evidence, and the trial court committed error in charging the jury that defendant's failure to file forthwith a report of the accident with the Commissioner of Motor Vehicles might be considered as affecting defendant's credibility. ( Constantinides v. Manhattan Transit Co., 264 App. Div. 147.) Judgment reversed on the law and the facts and a new trial directed, with costs to abide the event. Hill, P.J., Foster and Russell, JJ., concur; Heffernan and Brewster, JJ., dissent.