Dowling, J.:
The plaintiff herein was a tenant of the defendant in a tenement house owned by him at 218 Delancey street, city of New York, *45She claims that on September 11, 1919, while lawfully and properly using one of the staircases of the premises, she tripped and fell by reason of the covering thereon being in an old, worn, torn, broken and defective condition, and sustained injuries for which she has recovered herein. In our opinion the verdict is against the weight of evidence on the issue of defendant’s negligence. Further, errors were committed upon the trial which would in any event necessitate the reversal of the judgment and the granting of a new trial. Among these errors were the comments of the learned trial court when he reopened the case to permit the examination of the witness Bergenthal; his comments upon a question put to the defendant when he was recalled and was being examined by his counsel, and other remarks during the course of the trial. All of these incidents undoubtedly prejudiced the defendant in the minds of the jury and must have influenced their verdict, in view of the physical facts negativing plaintiff’s claim, as shown by the photographs herein. The verdict returned by the jury was for $15,000, while the amount claimed in the complaint was only $10,000. But this was not an indication of passion or prejudice upon their part, inasmuch as the learned trial court had not charged them what the maximum of recovery could be, and neither counsel had called his attention to the oversight or asked him to charge upon that subject.
The judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.
Clarke, P. J., Laughlin, Smith and Greenbaum, JJ., concur.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.