Plaintiff has recovered damages to his.car arising out of a collision with defendant’s car driven by defendant’s chauffeur. Plaintiff relies on the presumption arising from ownership that the defendant’s car was being operated in his business. Defendant undertook to prove that the car was being driven by the chauffeur on the latter’s business and without defendant’s consent. (Highway Law, § 282-e, added by Laws of 1924, chap. 534, as amd. by Laws of 1925, chap. 167.)
After both defendant and the chauffeur had testified that defendant had not given his consent, plaintiff, in rebuttal, called two witnesses who testified to a conversation of the chauffeur with Officer Russell (who was one of the witnesses) in which the chauffeur is alleged to have said that defendant knew he had the car out. The objection to these questions was that the testimony was not binding on the defendant and at the end of the testimony a motion was made to strike it out on the ground that it was irrelevant, immaterial and not binding on the defendant.
I confess that from reading the record and appellant’s brief I am not even now clear whether defendant’s objection was intended to be that no foundation had been laid for this testimony attacking the credibility of the chauffeur by asking him first whether he had made any such statement to the officer in contradiction of his evidence at the trial under the rule frequently stated and recognized in Larkin v. Nassau Electric R. R. Co. (205 N. Y. 267), or whether defendant contends that the testimony was inadmissible under all circumstances. It would undoubtedly have been perfectly competent to attack the credibility of the chauffeur had the foundation been laid formally by the suggested question to the chauffeur, and a question was asked on the chauffeur’s cross-examination: “ Q. You had a talk with the officer? A. I did not have any talk with any officer. He directed me around to the police station.” If, therefore, defendant’s objection is to the admissibility of the testimony for any purpose it is certainly untenable. If it is based on the absence of the laying of a foundation as above pointed out, I think that it was too general to indicate to the trial court what was in the mind of defendant’s counsel, and, therefore, it does not warrant & reversal.
*392In Tooley v. Bacon (70 N. Y. 54, 37) the appropriate rule is stated as follows: “ Where there is a general objection to evidence and it is overruled, and the evidence is received, the ruling will not be held erroneous unless there be some ground which could not have been obviated if it had been specified, or unless the evidence in its essential nature be incompetent.” It is perfectly clear that in the instant case had the objection been specified the defect could have been corrected by a single question directed to the chauffeur in regard to his statement to the officer particularizing somewhat further the exact nature of the statement claimed to have been made by him to the officer. Moreover, at best the situation presents a mere technical objection the soundness of which in view of the question asked of «the chauffeur on cross-examination is highly doubtful. And finally no effort or attempt was made to call the chauffeur in surrebuttal.
Under such circumstances I do not think that reversible error was committed, and believe that the judgment should be affirmed, with twenty-five dollars costs.
Proskauer, J., concurs; Mullan, J., dissents in opinion.