¶1(dissenting):
¶2I am of the opinion that the court erred in sustaining the general objections to the second question propounded to the plaintiff’s son on redirect examination, set forth in the prevailing opinion. The question as to whether Hr. Hirsch suggested that the witness’ mother use, any part of the money to pay him was quite leading, but the objection was not upon that ground, and had it been it could have been obviated by asking for the conversation between the witness and Hr. Hirsch, which would have been clearly competent. If Hirsch, in the conversation, said anything on the sub*774je^t referred, to in the question, it would have. been relevant and material. In Turner v. City of Newburgh (109 N. Y. 301).the riile is stated, and authorities .thertefór cited; that it is.not error to overrule a general objection unless there be some grounds of objection to the evidence which could not have been obviated, had they been specified, or unless the evidence in its essential nature be' incompetent, and the court say: “ The reason for the rule is, that if the ground had been stated the form of the question might have been changed, Or the counsel might have conceded the incompetency' of the: evidence and have withdrawn the question.” The samé rule was announced in Murphy v. People (63 N. Y. 590, 594), where in a capital case parol evidence was received of the contents of plead- • ings over a general objection, and the court say: “If objection had been taken to the mode óf proving .the facts, other- proof might have been given and the objection have been obviated. In the absence of an objection of this kind, it must be assumed that the. question intended to be raised by the objection made was. as to the competency of proof of the fact 'to which the question related, and not to. the mode of proving it.” I understand that Where a general objection .only is interposed, it is not discretionary with the court whether to receive the evidence in accordance with the rule in Turner v. City of Newburgh and Murphy v. People (supra)or to sustain the objection and exclude i't upon the theory that the question is leading, although the evidence called for may be relevant and material. . If it be competent for the .court in those circumstances to receive the evidence, I think it-is -errop for the'court to exclude it where the question is objectionable only as to form and.the evidence is relevant,-, and it has been so held in numerous cases. (Abenheim v. Samuel, 16 N. Y. St. Repr. 907; Gerry v. Siebrecht, 84 N. Y. Supp. 250.) As this evidence was both relevant and. material, it cannot be said that its exclusion was not prejudicial to the appellant. I, therefore, vote for reversal of the judgment. .
¶3Houghton, J., concurred.
¶4Judgment affirmed, with costs.