I agree with Mr. Justice Ingraham in his- construction of the law, but I think the evidence fairly sustains the finding that the law was not- violated, and that, therefore, the order should be affirmed.’
With respect to the alleged violation of the tenth day of June, the respondent showed by six witnesses, three of whom appear to have been disinterested, that the special agents first ordered sandwiches, and were served with the sandwiches before they were served with the drinks. Where a party who has not a room in the hotel enters the eating room of a hotel on Stmday and first asks for food, and. in connection with it asks for liquid refreshments, I think the proprietor, in the absence of other evidence of the purpose of the visit, is justified in assuming that the primary purpose is to obtain something to eat. Since it has been decided-that a sandwich may constitute a meal, I think it is immaterial that the sandwich, after having been ordered first, is not eaten. It is not improbable that a man may think he has an appetite, and find when the food is placed before him that he has not; that cannot affect his original order for food upon which the proprietor was justified in acting.
With respect to the alleged violation on the -seventeenth day- of June, the respondent showed by five witnesses that the special agents first asked for four sandwiches, and that the sandwiches were served before the drinks were brought to the table.
I am of opinion also that the fair inference is that the room in *12which the sandwiches and drinks were served was the regular dining room of the hotel. The concession that the premises conformed to the law with respect to the requirements of a hotel was a concession that there was such a dining room properly equipped with suitable tables, furniture and accommodations, and kitchen conveniences for cooking. (Liquor Tax Law [Laws of 1896, chap. 112], § 31, snbd. 2, as amd. by Laws of 1903, chap. 486.) I think the respondent, in view of this concession, was led to believe that the concession was with respect to this particular room as the din- . ing room,, and that she was justified in believing that the issue to be tried was whether drinks were served without a meal, and to that point alone the further evidence was addressed. The statute does not assume to prescribe the hours during which meals may be served in a hotel. .
Another fact which tends to show that it is improbable that the law was violated on these occasions is that the special agents were recognized as such by the employees of the respondent before their orders were taken. No hotel proprietor will be secure in his liquor tax certificate unless his right thereto may be sustained on the testimony of his employees, corroborated in a manlier to satisfy the conscience of. the,court, that the complainants on entering the dining room manifested that their primary purpose was to obtain food by first ordering something to eat.
Judgment and order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order filed.