The opinion
Folgee and Eael, JJ.,
concurred in the result, only ; thinking that in the law of evidence of this State, it had been settled that the trial court may, in its discretion, alloAV the questions put to Ford and Butler on cross-examination and discussed by the chief judge in his opinion. See Southworth v. Bennett ( 58 N. Y., 659 ), wdiere it was said by Johnson, J., in an opinion (in MSS.) concurred in per totarn curiam: “The question put by the defendant’s counsel to the plaintiff, Avhether he Avas not then under indictment for usury, seems to have been one of those depreciatory questions which, although not relevant to the issue, a judge may, in his discretion,, allorv to be put on cross-examination.
*602 After considerable discussion in this State, the constant practice at Circuit and the decisions in Brandon v. People ( 42 N. Y., 265 ); People v. Gay (7 id., 378 ), and Lipe v. Eisenlord (32 id., 229), seem to leave no doubt that the allowance of such questions rests in the discretion of the court.” Judgment affirmed.