Judgment unanimously reversed on the law and on the facts, and a new trial ordered, with $50 costs to appellant. Plaintiff's claim of negligence is that she was caused to fall because of a hole in the sidewalk. While the claim may be of doubtful merit and, under the circumstances of this case, the burden of proving liability on the part of the defendant a difficult one, such possibilities afford no reason to reject this appeal. Plaintiff is entitled to a fair and impartial opportunity to present her case. This she did not receive ( Whitehead v. Mutual Life Ins. Co., 264 App. Div. 647; Kamen Soap Prods. v. Prusansky Prusansky, 11 A.D.2d 676; Buckley v. 2570 Broadway Corp., 12 A.D.2d 473). Nor can we conclude that the exclusion of the proffered photograph was harmless error in light of the court's comment at the time of rejection.
Concur — McNally, J.P., Stevens, Eager, Steuer and Staley, JJ.