
    (May 31, 1966)
    Henry Bromberg, Appellant, v. City of New York, Respondent.
   In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Queens County, entered March 9, 1965 in favor of defendant upon a jury verdict after trial on the issue of liability only. J udgment reversed, on the law, and new trial granted, with costs to abide the event. No questions of fact have been considered. The accident on which the action is based occurred while plaintiff, a bus driver employed by the New York City Transit Authority, was driving his bus past a double-parked truck. The bus went into several holes in the roadway. A new trial is required because of the cumulative effect of prejudicial remarks in defendant’s counsel’s summation and in the Trial Judge’s charge to the jury. It was improper for counsel to make himself an unsworn witness and to indulge in argument founded on no proof (People v. Lovello, 1 N Y 2d 436, 439; Kohlmann v. City of New York, 8 A D 2d 598; Cherry Creek Nat. Bank v. Fidelity & Cas. Co., 207 App. Div. 787, 790). Repeated allusions in the charge to plaintiff’s failure to call witnesses not under his control and equally available to defendant, expressions showing doubt about plaintiff’s truthfulness, comments indicative of the court’s opinion respecting the disputed existence of the holes, remarks about the motives of plaintiff’s counsel in selecting the evidence he offered and statements about matters extraneous to the issues may well have diverted the jury’s consideration from the proper issues in the ease and may have substantially influenced the outcome. Such matters in the charge, to which exceptions were duly taken, were clearly prejudicial. Additional error was committed in excluding reports of the accident which were furnished to the Transit Authority by plaintiff and his immediate supervisor in the regular course of business. In the circumstances, a new trial is required in the interests of justice (Bishin v. New York Cent. R. R. Co., 20 A D 2d 921, and cases there cited).

Ughetta, Acting P. J., Christ, Hill, Rabin and Benjamin, JJ., concur.  