
    Lillian Kaplan, Appellant, v. City of New York, Respondent.
   Judgment for defendant-respondent City of New York pursuant to a jury verdict against plaintiff-appellant, in an action for personal injuries sustained in a fall on an allegedly defective sidewalk, unanimously reversed on the law, and a new trial ordered, with $50 costs and disbursements to abide the event. While the accusations made by plaintiff’s counsel were without sufficient legal basis and were therefore provocative, the Trial Justice’s charge exceeded proper limits in commenting on those accusations. Moreover, it was error to charge that courts have held that depressions in the sidewalk amounting “ at its greater variance to two and three-quarters of an inch, or to three inches, even if poorly lighted, or obstructed by shadows, does not constitute negligent maintenance of a sidewalk by the municipality. The fact that the edge of the concrete slab of the sidewalk was raised two to three inches higher than the adjoining slab proves no actionable negligence.” (Loughran v. City of New York, 298 N. Y. 320; Carbin v. City of New York, 276 App. Div. 980, affd. 301 N. Y. 646; Lotito v. City of New York, 278 App. Div. 581; Anno: Sidewalk Defect— Question for Jury, 37 ALR 2d 1187.) The charge, in effect, was a direction for a verdict, and the record does not warrant a direction. Appeal from order entered May 28, 1965 unanimously dismissed, as academic, without costs and without disbursements. No opinion.

Concur — Botein, P. J., Breitel, McNally and Eager, JJ.  