SECOND DEPARTMENT, FEBRUARY TERM, 1899. [Vol. 38. which plaintiff was a passenger, and a Third avenue cable car. At the point where the collision occurred the roads of the two companies intersect substantially at right angles. The evidence was sufficient to justify the jury in finding that the collision was occasioned by the appellant's negligence. But we feel constrained to reverse the judgment for what we regard a substantial error in the charge. The learned trial court said to the jury: "The accident which happened in this case, a collision between two cars running upon tracks which crossed each other, was one which, in the ordinary course of events, would not have happened unless some one had been guilty of negligence, and hence the mere fact that such an accident happened at all raised at once sufficient presumption of negligence upon the part of the defendants to make it incumbent upon them to produce evidence to show, as to each of them, that it at least had not been guilty of such negligence." To this charge the appellant excepted. Doubtless, from the mere occurrence of the collision, the presumption of negligence arises, and had the action been against a defendant in the control and operation of both cars, such a defendant would be properly called upon for an explanation. In such a case the charge of the trial court would have been correct, but in the present case two different parties controlled the operation and management of the cars; there were two actors in the collision, the driver of the Second avenue car and the gripman of the Third avenue car. It was entirely possible, and also entirely probable, that the collision might have been due solely to the fault of one of the parties, and that the other might have been in no way to blame. Therefore, the presumption of negligence arising from the accident did not tend to inculpate either party. Proof that one of two or more parties must have committed a tort or became subject to a contract liability, does not establish the liability of any particular one of the parties, nor subject any party to the burden of explanation. Of course, this would not be applicable to the case of the Second Avenue Railroad Company, which assumed by contract the duty of transporting safely its passengers, so far as human care and foresight could accomplish that result, and of guarding and protecting them even as against the negligence of other parties. But the appellant stood in no contractual relation to the plaintiff, and before it could be put on its defense or called on for explanation, it was App. Div.] SECOND DEPARTMENT, FEBRUARY TERM, 1899. necessary for the plaintiff to present proof tending to establish that it was negligent, not merely that it or its co-defendant was negligent. Doubtless the details and circumstances attending the collision might establish the negligence of the appellant, and, in fact, that is the only way in which such negligence could be established. This is all that Loudoun v. Eighth Avenue R. R. Co. (16 App. Div. 152) is authority for. But that is a very different proposition from the one charged by the court that the occurrence of the accident raised a presumption of negligence against each company. The learned counsel for the respondent contends that this error of the court was cured by a subsequent instruction to the jury. The rule is that "To obviate an erroneous instruction upon a material point, it must be withdrawn in such explicit terms as to preclude the inference that the jury might have been influenced by it." (Chapman v. Erie Railway Co., 55 N. Y. 579.) The appellant presented to the court twenty requests to charge. Its 8th request was: "No inference of negligence against the defendant Third Avenue Railroad Company must be drawn simply because of the occurrence of the accident." This was refused and the appellant excepted. The 19th request is substantially a repetition: "The mere fact that there was a collision between the two cars does not arouse any presumption that the defendant Third Avenue Railroad Company was negligent." This also was refused and the appellant excepted. The appellant's 10th request to charge was: "If either the conclusion of the negligence of the Third Avenue Railroad Company, or the absence of negligence on its part may, with equal fairness be drawn, then no verdict can be rendered against the Third Avenue Railroad. The mere fact that the cable car struck the blow does not prove negligence on the part of the defendant, the Third Avenue Railroad Company." The court charged this request. It is claimed that the latter part of this request, "The mere fact that the cable car struck the blow does not prove negligence on the part of the defendant, the Third Avenue Railroad Company," not only covers the two other requests alluded to, but operates as a retraction of the previous charge by the court that the occurrence of the accident called upon each defendant for explanation. We do not so construe it, and it is very plain that the trial court did not regard this instruction as inconsistent with its previous charge, or otherwise SECOND DEPARTMENT, FEBRUARY TERM, 1899. [Vol. 38. it would not have declined to charge the 8th and 19th requests. We regard this portion of the 10th request as merely instructing the jury that the negligence of the Third Avenue Railroad Company was not necessarily or conclusively established by the fact that it was the car of that company which struck the blow, but not as dealing with the question of presumption or the necessity for explanation. The presentation to the court of a great number of requests to charge, many of them covering either the same ground or containing substantially the same legal proposition and varying only in form of expression, is not to be commended. In dealing, on the spur of the moment, with such a series of propositions, the ablest judge will at times be betrayed into inaccuracies or into trifling errors. Of course, there was no necessity in this case for the presentation of twenty separate and distinct propositions to the jury. Had there occurred some slight error in the rulings on such requests, we would not feel compelled to reverse a judgment on account of such error in a case where the main charge had been fair, and had correctly stated the law. So, in the present case, if the error which we have discussed had arisen only on the requests to charge, we are by no means prepared to say that we would have given effect on this appeal to the appellant's exception. But the error of the learned judge occurred in the body of the charge, when the court was first announcing to the jury the rules of law applicable to the case, and which should govern their disposition of it. The appellant seasonably and properly excepted to it, and we think it was entitled to a full and complete retraction. The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event. All concurred. Judgment and order reversed and a new trial granted, costs to abide the event. App. Div.] SECOND DEPARTMENT, FEBRUARY TERM, 1899. J. JACOB OWENS, Respondent, v. NEW ROCHELLE COAL AND LUMBER Malicious prosecution — probable cause, a question for the jury. In determining, in an action for malicious prosecution, whether there is probable cause the inquiry is not limited to facts within the prosecutor's knowledge, but the information given to the prosecutor by others may be shown. The question of how far information received from another is a justification for the act of the defendant, in causing the arrest of the plaintiff, is not one of law for the court, but one of fact for the jury. In such an action, brought by a contractor who had been arrested on a charge of petit larceny preferred by the defendant and subsequently acquitted, it appeared that the plaintiff, who was grading a plot of land belonging to one Mapes, ordered of the defendant stone for use thereon to be charged to Mapes' account, which stone was delivered at the premises of Mapes and receipted for by Mrs. Mapes; that subsequently Mapes repudiated the authority of the plaintiff to order the stone on his account, whereupon the defendant presented the bill to the plaintiff, and, according to the plaintiff's testimony, threatened on one occasion to lock him up, and on another occasion wrote, saying "unless you pay the bill by Friday at 3 P. M., we will take measures to make you do so," and upon his refusal to pay, procured his arrest. It also appeared that the defendant, to whom Mapes had refused to give an affidavit that he had not authorized the plaintiff to order the stone, instead of procuring the attendance of Mapes before the magistrate when it applied for the warrant, had one of its officers make an affidavit, of his own knowledge, of the falsity of the plaintiff's representation when he ordered the stone, although the information of the affiant on that subject rested solely upon the information received by him from Mapes. Held, that the delivery and use of the stone upon Mapes' premises and the receipt given by his wife, while not conclusively showing the absence of intent on the part of the plaintiff to defraud the defendant, bore strongly on that question, while from the letter of the defendant to the plaintiff and the threat to lock him up, if the bill was not paid, it might be inferred that the prosecution was instituted simply to enforce payment of the debt; and that under these circumstances the good faith of the defendant, its belief in the guilt of the plaintiff and the existence of probable cause for such belief, were questions for the jury to determine. APPEAL by the defendants, the New Rochelle Coal and I umber Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 19th day of October, 1898, upon the verdict of a jury, and also from an order entered in said clerk's office on the 19th day SECOND DEPARTMENT, FEBRUARY TERM, 1899. [Vol. 38. of October, 1898, denying the defendant's motion for a new trial made upon the minutes. J. Addison Young, for the appellant. Michael J. Tierney, for the respondent. CULLEN, J.: The plaintiff made a contract to grade and make paths in a plot of land belonging to one Mapes. Crushed blue stone was necessary for the construction of the paths. The plaintiff testified that on applying to Mapes for some money to get the blue stone, Mapes told him that he was short of money, but directed him to order the stone from the defendant on his (Mapes') account. Thereupon the plaintiff ordered the blue stone from the defendant. The stone, amounting in value to eight dollars and ninety-four cents, was delivered at the premises of Mapes, and Mrs. Mapes gave receipts for the deliveries. Mapes had a running account with the defendant, and some time after the delivery of the stone the defendant sent its bill to Mapes. After retaining the bill for some period, Mapes paid its amount, deducting the items of stone ordered by the plaintiff, and wrote repudiating the authority of the plaintiff to order that stone on his account. Thereupon an officer of the defendant went to the plaintiff and told him of Mapes' denial of any authority given by him to plaintiff to order the stone, and, according to plaintiff's testimony, said to him: "If you don't pay it I will lock you up; that's all now, and have no tomfoolery." In response plaintiff told the defendant's agent that Mapes had authorized him to purchase the goods. Shortly after defendant wrote to the plaintiff repeating Mapes' denial of authority, and concluding, "so we beg to say that unless you pay the bill by Friday at 3 P. M. we will take measures to make you do so." The plaintiff did not pay the bill, and thereupon the treasurer of the defendant went before a police justice and made an affidavit charging the plaintiff with the offense of petit larceny, and procured the issue of a warrant on this charge. The plaintiff was arrested and confined in the police station until he gave bail. He was tried before a jury and acquitted. On the trial Mapes testified that he had given the plaintiff no permission to order the stone. The plaintiff testified to a conversation in which |