
    Alfred Evans, Respondent, v. Alphonse Major, Appellant.
    Judgment and order unanimously affirmed, with costs. The rule that the action of a magistrate in holding the accused for trial is prima facie evidence of probable 'cause for the prosecution is firmly established in this State. But the case presented to the court on the trial was not in all respects the same as that presented to the magistrate. For instance, to a leading question asked by the magistrate, defendant was made to testify that plaintiff had taken the car out without his permission, whereas the most that defendant claimed on the trial was that plaintiff placed the car in a certain garage against his instructions; and it also appeared in the evidence on the trial herein that at the time when the complaint was laid before the magistrate, defendant knew that plaintiff had placed the ear in the Waverly avenue garage, and had, in accordance with instructions of defendant’s wife, returned it to the President street garage. We think the determination whether the evidence shows a want of probable cause is in the first instance for the court; and although the question in this case was left to the jury, yet defendant cannot complain, because, first, there was some dispute in the evidence, especially upon the point as to whether defendant had instructed plaintiff not to place the car in the Waverly avenue garage, and, second, because the court would have been justified in determining upon the record that there was want of probable cause. No error is disclosed in the failure on the part of the court to charge the requests proffered by defendant’s counsel, for either the matter had already been covered by the main charge, or the requests were so worded that the court was under no obligation to adopt their phraseology.
   Present — Jenks, P. J., Rich, Putnam, Blaekmar and Jaycox, JJ.  