PER CURIAM.[1] This case is similar to Thomas B. Carroll v. Max D. Blum, 157 N. Y. Supp. 7, decided at this term, except that it affirmatively appears that the appellant was clearly prejudiced by several unwarranted and improper references during the summation of respondent’s counsel during the absence of the trial judge, and that appellant’s counsel interrupted and protested against such remarks. Although apparently, upon the return of the learned judge to his duties at the conclusion of the summation of counsel, he made some endeavor to remedy the injury which had been done in his absence to appellant’s interests, we hold that under the circumstances the absence of the court was clearly prejudicial.
[2] There is no merit in the contention that appellant’s counsel acquiesced in the judge’s absence by failure to protest against the same. Apart from the fact that it would be difficult to understand to whom or how the protest could be made until the injury was complete, we are unwilling to approve the doctrine that it is the duty of counsel to take affirmative formal steps to secure the attendance of the judge at the trial over which he presides.
Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs, judgment vacated, and a new trial ordered.