The opinion
Barker, J.:
All the questions presented, save one, were considered in the case of the same plaintiff against Burtis, just decided.
*20 It appeared that the defendant kept a saloon in the city oí Auburn. The court charged the jury that the calling for liquor and drinking the same on the premises was prima facie evidence of a sale, and the defendant excepted.
It has been held that where a person enters a tavern or saloon and calls for whisky or any other beverage, and it is set out to him by tlio proprietor, and he drinks it, nothing more being said, the law implies a sale. It was so held in The State v. Jarrett ( 35 Mo., 357 ), and in this court in the unreported case of Stark v. Lansing, decided in March, 1884.
The judgment should be affirmed, with costs.
Smith, P. J., Bradley and Haight, JJ., concurred.
Judgment and order affirmed.