
    Raymond H. Sharp, Respondent, v. City of Hornell et al., Appellants.
   Judgment and order unanimously reversed on the law and facts and a new trial granted, with costs to the appellants to abide the event. Memorandum : The finding of negligence implicit in the jury’s verdict for the plaintiff was against the weight of the evidence. The testimony as to the place where plaintiff fell or the cause for his fall was speculative and conjectural. The only testimony of any difference in elevation between the sidewalk blocks where plaintiff claimed he fell was estimated by the witness to be % of an inch at the most. Notwithstanding this fact, plaintiff’s counsel in his opening statement referred seven times to 2% inches and categorically stated he would prove that there was a difference of 2% inches. The difference in elevation of 2% inches at the curb, a place which was not involved in the accident, was set out on a map put in evidence by plaintiff. This exhibit was of little probative value, if any, and may well have caused confusion in the minds of the jurors. The Trial Judge denied a request by one defendant’s attorney to have the stenographer take the summation of plaintiff’s counsel. Under the circumstances in this case that denial was an improvident exercise of the court’s discretion. Justice requires that a new trial be had. (Appeals from judgment of Steuben Trial Term for plaintiff in a negligence action. The order denied a motion to set aside the verdict and for a directed verdict and for a nonsuit.) Present — Williams, P. J., Bastow, Goldman, McClusky and Henry, JJ.  