The appeal in this cause brings up now nothing of substance for review differing from what has already been settled by the decision of this court. It was held on the last preceding appeal (2 App. Div. 295) that while the plaintiff was undoubtedly bound to prove the delivery of the trank to the defendant in its original condition, she did so prima facie when she showed that after the defendant secured her check for the purpose of obtaining possession of the trunk from the railroad company, the defendant did obtain that possession; and it was then for the defendant to rebut the presumption that the railroad company delivered the trunk to it in the same condition as it was when it was checked. The evidence in the record now before us fails to show that the defendant has successfully rebutted the presumption referred to. There was no error committed in charging the jury on that subject, nor did the court err in refusing to charge that if, as between the defendant and the railroad company, the jury were unable to determine in whose possession the trunk was when the theft took place, the defendant would be entitled to a verdict “ irrespective of any other question.” That request simply asked the court to instruct the jury to ignore that which was the determinate consideration in the case, namely, that it had been sufficiently shown prima facie that the defendant did obtain possession of the trunk in the condition in which it was when checked, and that hence the necessity existed for the defendant to rebut the presumption that it received the trunk in that condition. No other exception in the case requires discussion.
The judgment should'be affirmed, with costs.
Van Brunt, B. J., O’Brien and Ingraham, JJ., concurred ; Williams, J., dissented.
Judgment affirmed, with costs.