
    Benjamin Puleo, an Infant, etc., Appellant, v. Stanislaw Holding Corporation, Respondent.
    Supreme Court, Appellate Term, First Department,
    January 28, 1926.
    Trial —• instructions — comment of trial court as to accuracy of photographs prejudicial to plaintiff’s case — new trial granted.
    Instructions of the trial court concerning the accuracy of distances as presented by photographs which, in effect, amounted to an- instruction to the jury to find for the defendant, warrants a reversal of the judgment and the granting of a new trial, where the general tenor of the charge is indicative of antagonism to plaintiff’s cause of action.
    Appeal by plaintiff from a judgment of the Municipal Court, Borough of Manhattan, Second District, rendered in favor of the defendant for the sum of sixty-three dollars, representing costs.
    
      Kevie Frankel, for the appellant.
    
      Pettigrew, Glenney & Bovard [L. C. Stryker of counsel], for the respondent.
   Per Curiam.

The comment of the court with reference to the accuracy of distances as represented by the photographs was tantamount to an instruction to the jury to find for the defendant. It is a matter of almost common knowledge that photographs may be taken from different angles so as to exaggerate certain distances, or, on the other hand, to make space more compact, but notwithstanding this the judge instructed the jury that photographs cannot exaggerate. Again, the trial .judge in his charge, after having stated to the jury that “ photographs cannot lie,” stated that if the photograph is to be believed the accident could not have happened without the contributory negligence of plaintiff. A fair trial must always be insisted upon. The general tenor of the charge is one of antagonism to plaintiff’s cause.

Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Guy, Wagner and Lydon, JJ.  