
    Fourth Appellate Department,
    January, 1899.
    Reported. 37 App. Div. 630.
    The People of the State of New York, Respondent, v. Jacob Mueller, Appellant.
    This is an appeal from a judgment convicting defendant of selling liquor on Sunday and from an order denying defendant’s motion for a new trial.
    
      Easel & Abbott, attorneys for appellant.
    The court erred in not submitting to the jury the question as to whether or not a sandwich or a cracker constituted a meal; also, as to whether or not the people who were in defendant’s place on the evening in question were guests.
    The court erred in charging the jury “ while I do not think it. necessary in this case to submit that question to you, if you believe the People’s witnesses; ” McKenna v. People, 81 N. Y. 360; People v. Flack, 125 N. Y. 335; People v. Ledwon, 153 N. Y. 10.
    The court erred in charging the jury “ this is in brief the testimony of the People and if you are satisfied with its truthfulness, then a case has been made out.” McKenna v. People, (supra).
    
    The court erred in sentencing the defendant to pay a fine of $100, and in default of the payment thereof to be committed t-> the Erie county penitentiary. People v. Kinney, 24 App. Div. 309.
    
      Daniel J. Kenefick, attorney for respondent.
   The question whether or not a sandwich or a cracker constituted a meal was submitted -to the jury. There was no question to submit to the jury as to whether the men were guests or not, and this was not asked or requested by defendant's counsel.

There was an error in charge of judge that “ While I do not think it necessary in this case to submit that question to you, if you believe the plaintiff’s witnesses ” because there was no controversy between the witnesses of the People and the defendant’s witnesses, and if there were any errors, it was cured by subsequent utterance of the court.

The sentence imposed is no part of the judgment of conviction, and cannot be remedied or reviewed on this appeal.

Judgment of conviction modified by striking therefrom the words, “And in default of the payment thereof to be committed to the Erie county penitentiary at hard labor until such fine shall be paid not exceeding one day’s imprisonment for each and every dollar so imposed as a fine,” and as so modified judgment affirmed. The judgment to be entered and certified to the-Supreme Court of Erie county, pursuant to section 547 of the Code of Criminal Procedure.

All concurred, except Ward, J., not voting.  