
    Karl Woest, Respondent, v. 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. 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). Christ, Acting P. J., Brennan, Benjamin and Martuscello, JJ., concur; Munder, J., dissents and votes to affirm the judgment.  