SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
December 23, 1968
KARL WOEST, RESPONDENT,
SHOR'S CATERING CORP., DEFENDANT, AND HEWLETT CATERING CORP., DOING BUSINESS AS SHOR'S RESTAURANT, APPELLANT
Judgment of the Supreme Court, Suffolk County, entered June 26, 1967, reversed, on the law, and new trial granted as against appellant, Hewlett Catering Corp., without costs.
Christ, Acting P. J., Brennan, Benjamin and Martuscello, JJ., concur; Munder, J., dissents and votes to affirm the judgment.
No questions of fact have been considered. In our opinion, the trial court's comments in refusing appellant's request to charge relative to the tool box improperly removed from the jury's consideration the presence of the tool box, which the jury could have taken into account in determining whether the accident happened in the manner claimed by plaintiff (Piwowarski v. Cornwell, 273 N. Y. 226, 229; Zizzi v. Evans, 3 A.D.2d 644; Mercatante v. City of New York, 286 App. Div. 265).
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