Laughlin, J.:
The defendant was the proprietor of the Parkway Hotel, at No. 2 East One Hundred and Tenth street, which is at the southeasterly corner of Fifth avenue, in the borough of Manhattan, New York. On the 20th day of September, 1916, he duly obtained a certificate authorizing him to traffic in liquors on said premises during the ensuing liquor tax year, and executed a bond in the penal sum of $1,800 conditioned, among other things, as required by the Liquor Tax Law,
While it might be said that the testimony of the special agents with respect to sales on the first and last date was controverted to some extent concerning the material fact as to whether drinks were first ordered whereupon the waiter suggested that they must order something to eat before they could be served with drinks, there is no conflict in the testimony on that point with respect to the sales on the first of July, for the testimony of the defendant’s manager clearly shows that he understood that the special agents had come, not to obtain a meal, but to obtain drinks, and that he pointed out to them the way they could obtain the drinks, viz., by ordering something to eat and by suggesting to them that even a pretzel would answer. It is not incumbent on the plaintiff to establish all of the violations charged. If a single violation was shown by uncontroverted evidence he was entitled to recover. At the close of the evidence his counsel duly moved for judgment and excepted to the denial of the motion. The sale of the liquor was uncontroverted. That cast the burden on the'defendant of showing that the sales were made to guests of the hotel. (Matter of Clement [Martin Certificate], 117 App. Div. 5; Cullinan v. O’Connor, 100 id. 142; People v. [124]*124Clark, 61 id. 500; Matter of Schuyler, 63 id. 206.) The defendant did not sustain that burden, for on the uncontroverted testimony the situation presented by the call of the special agents at the defendant’s place of business on July first, at least, and their sitting down at a table and ordering drinks without in any manner suggesting that they were desirous of obtaining anything to eat was not “
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Laughlin, J.:
The defendant was the proprietor of the Parkway Hotel, at No. 2 East One Hundred and Tenth street, which is at the southeasterly corner of Fifth avenue, in the borough of Manhattan, New York. On the 20th day of September, 1916, he duly obtained a certificate authorizing him to traffic in liquors on said premises during the ensuing liquor tax year, and executed a bond in the penal sum of $1,800 conditioned, among other things, as required by the Liquor Tax Law,
While it might be said that the testimony of the special agents with respect to sales on the first and last date was controverted to some extent concerning the material fact as to whether drinks were first ordered whereupon the waiter suggested that they must order something to eat before they could be served with drinks, there is no conflict in the testimony on that point with respect to the sales on the first of July, for the testimony of the defendant’s manager clearly shows that he understood that the special agents had come, not to obtain a meal, but to obtain drinks, and that he pointed out to them the way they could obtain the drinks, viz., by ordering something to eat and by suggesting to them that even a pretzel would answer. It is not incumbent on the plaintiff to establish all of the violations charged. If a single violation was shown by uncontroverted evidence he was entitled to recover. At the close of the evidence his counsel duly moved for judgment and excepted to the denial of the motion. The sale of the liquor was uncontroverted. That cast the burden on the'defendant of showing that the sales were made to guests of the hotel. (Matter of Clement [Martin Certificate], 117 App. Div. 5; Cullinan v. O’Connor, 100 id. 142; People v. [124]*124Clark, 61 id. 500; Matter of Schuyler, 63 id. 206.) The defendant did not sustain that burden, for on the uncontroverted testimony the situation presented by the call of the special agents at the defendant’s place of business on July first, at least, and their sitting down at a table and ordering drinks without in any manner suggesting that they were desirous of obtaining anything to eat was not “ such as to indicate to a person of ordinary intelligence ” that they had resorted there in good faith to obtain a meal and that the liquor they ordered after the defendant’s manager informed them, in the manner stated by him, that drinks were not served without meals and that they might order anything they liked to eat, and that even a pretzel would answer, was an incident to the sandwiches ordered as meals on this suggestion of the manager, 'which is now the well-settled rule by which the question as to whether one to whom liquor has been served at an hotel on Sunday was or was not a guest. (Farley v. Bronx Bath & Hotel Co., 163 App. Div. 459; Matter of Clement [Martin Certificate], supra; Cullinan v. O’Connor, supra; Farley v. Buttner, 165 App. Div. 343.)
It follows that the order and judgment should be reversed, with costs, and judgment awarded in favor of plaintiff in accordance with the prayer of the complaint and for costs upon its motion for judgment at the close of the evidence.
Clarke, P. J., Dowling, Page and Merrell, JJ., concurred.
Judgment and order reversed, with costs, and judgment ordered for plaintiff, with costs.
See Consol. Laws, chap. 34 (Laws of 1909, chap. 39), § 16, as amd. by Laws of 1916, chap. 416.— [Rep.