
    Jeanette Benjamin, Respondent, v. Bank for Savings in the City of New York, Appellant.
    First Department,
    July 2, 1943.
    
      
      Robert H. Nix of counsel (Charles F. Bachma/nn with him on the brief; John P. Smith, attorney), for appellant.
    
      Sidney J. Feltenstein for respondent.
   Per Curiam.

The statement of the trial court in denying the motion of the defendant’s attorney for a mistrial that “ You have done that a score of times, and it has been denied every time. You have done that because you don’t like the way the trial has been going, and because you anticipate the result ” must have prejudiced the defendant’s case with the jury. Such a statement could not fail to suggest to the jury that the defendant had not established any defense and that a verdict in favor of the plaintiff was to be anticipated. We think the error was such as to require the granting of a new trial.

It was also error to permit the jury to consider the difference in the construction of the third and fourth floors of the building as an element of the defendant’s negligence.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Martin, P. J., Townley, Untermyer, Cohn and Callahan, JJ., concur.

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