Judgment of the County Court, Queens County, convicting the appellant of the crime of grand larceny in the first degree, in four counts, reversed on the law and the facts, and a new trial ordered. It was *1145error to instruct the jury in effect (fol. 554) to find whether or not the appellant took the deposits without intention to fulfill the executory building contracts, and to refuse to charge as requested at folio 564. {People v. Karp, 298 N. Y. 213; People v. Forrester, 274 App. Div. 1006.) It was also error to receive the evidence offered by the assistant district attorney in charge of the complaint bureau as to the conversation had with the appellant’s attorney in the appellant’s presence, and for the trial assistant district attorney, in summation, to call attention to the failure of the defendant to testify. Nolan, P. J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.