Judgment of conviction unanimously reversed, on the law and on the facts, the information dismissed and the fine ordered remitted. Defendant appeals from a judgment of conviction by a City Magistrate sitting as a Court of Special Sessions of the City of New York for violation of subdivision 2 of section 65 of the Alcoholic Beverage Control Law, in that he served and sold an alcoholic beverage to a person apparently intoxicated.
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Defendant was sentenced to pay a fine of $25 or to serve 10 days. The fine was paid. The proof fails to establish the guilt of the defendant beyond a reasonable doubt. Concur — Breitel, J. P., Rabin, M. M. Frank, McNally and Bergan, JJ.