
    Madeline B. O’Malley, as Administratrix of the Estate of Edward O’Malley, Deceased, Respondent, v. City of New York, Defendant, and Michael Painter et al., Appellants.
   In a negligence action to recover damages for wrongful death, the defendants Michael Painter and Catherine Clark appeal from so much of a judgment of the Supreme Court, Queens County, entered December 22, 1961 upon the jury’s verdict after trial, as is in favor of the plaintiff and against said defendants. Judgment, insofar as appealed from, reversed on the law and the facts, with costs to abide the event; new trial ordered as between the plaintiff and said defendants only; and action severed as to the defendant City of New York. In our opinion, the learned Trial Justice erred in excluding the Medical Examiner’s report, and in refusing to recess the trial for a reasonable period of time to await the arrival of the Medical Examiner who had been subpoenaed as a witness and was on his way to court. We are also of the opinion that the learned Trial Justice unduly participated in the trial, and that inadvertently he may have indicated to the jury a hostile attitude toward the defendants’ ease. Ughetta, Acting P. J., Kleinfeld, Christ, Hill and Rabin, JJ., concur.  