At one a. m. on August 14, 1924, the plaintiff was driving his taxicab west on One Hundred and Twenty-fifth street, New York city, when at the intersection of that street and Lexington avenue the taxicab was damaged in a collision with a car owned by the defendant, which was being driven north on Lexington avenue. At the time of the collision the defendant’s automobile was being operated by his chauffeur, William Collins. There can be no question upon this record as to the negligence of the chauffeur. The only question in the case is as to defendant’s responsibility for that negligence.
The defendant testified that at six p. m. on Wednesday, August thirteenth, his chauffeur Collins drove him to the Hotel Leonorie, at the corner of Madison avenue and Sixty-third street; that the defendant told the chauffeur to call for him again on Friday morning, the fifteenth; that he could have the next day, Thursday, off; that the defendant next saw the chauffeur at six o’clock on Thursday evening, when he told him about the accident; that he did not authorize the chauffeur to use the car; that he did not even permit him to use the car. The chauffeur, Collins, testified that he took the defendant to the Hotel Leonorie at six p. m. on August thirteenth; *381that the defendant then dismissed him until the following Friday morning, telling the chauffeur he could have the next day off; that the chauffeur did not ask the defendant if he could use the car; that the defendant did not tell him he could use it; that at half-past twelve he was playing cards in the garage; that “ I got a telephone at half-past twelve from my wife now, saying she was very ill, could I meet her, and thinking it was very serious I got into my boss’ car and went up and met her in the car and on the way home this accident happened.” This witness testified that the car was kept regularly in a garage at Seventieth street and Third avenue; that it was kept there that evening and had been there for some time before.
Upon his cross-examination Collins had been asked, without objection, the following questions: “ Q. What happened? A. The officer directed me to go around to the station house, which was in the next block, 126th street. Q. You had a talk with the officer? A. I didn’t have any talk with any officer. He directed me around to the police station.”
Upon rebuttal the plaintiff’s counsel recalled plaintiff and the police officer who arrested Collins after the accident to testify to what Collins said at the police station. To them he said that it was his boss’ car; that his boss knew he had the car out, and that he had not taken the car out “ on his own hook.”
This testimony was properly receivable to impeach the credibility of Collins. The witnesses for the defense were both interested persons, and to show that one of them had made a statement different from his testimony on the stand when he was questioned in the station house, on the vital point of whether he had the car out with the owner’s consent, was most important, and in itself raised an issue as to whether the version that he and defendant gave of his being off duty at the time was true.
Objections of various kinds were taken to this testimony, but none of them was proper in form or substance. Had an objection been taken that no proper foundation had been laid for the testimony in rebuttal, by calling the witness’ attention to the specific answers he had given in the station house, a different question would have been presented. The question was general: “ You had a talk with the officer? ” No objection was made to it. When it was answered in the negative, no effort was made to question the witness as to any further details of that conversation. But the form of the question was not made the basis for any objection to the testimony elicited in rebuttal, nor was it urged in any way that a proper foundation had not been laid for such testimony. That rebuttal testimony discredited Collins and raised an issue as *382to his entire testimony, and perforce had its effect upon that of defendant. Collins was not recalled to specifically deny the statements attributed to him.
It follows that the determination appealed from should be affirmed, with costs.
Clarke, P. J., McAvoy and Burr, JJ., concur; Merrell, J., dissents.
Determination affirmed, with costs.