132 N.Y.S. 59 | N.Y. App. Div. | 1911
Lead Opinion
Appeal from an order denying relator’s application for a writ of mandamus to reinstate him as a member of the respondent, a social club.
. The respondent-was incorporated in 1888, its purpose and objects being thus described in the certificate of incorporation.':“That the particular business and objects of our. society or club, so formed, are the promotion of social intercourse between the representative members of the: dramatic profession, and of the kindred professions- of literature, painting, sculpture and
It will be observed upon a reading of the charge against relator that he is not accused of doing anything to the prejudice of the club or its members. In fact neither the name of the club, nor any reference to it, appears in the charge, or in the article complained of. The charge is that his conduct is “ unbecoming an associate of members of an honorable profession,” which amounts to little more than an accusation of bad taste on the part of the writer. It is certainly not easy to see how the expression of relator’s unflattering estimate of all but a few of the persons on the stage constitutes an offense against the club, or tends in any way tq injure it or destroy its usefulness. It might lead to a coolness, or even a suspension of social relations between relator and some of his club fellows, but as was remarked by Mr. Justice Culler, in People ex rel. Ward v. Uptown Assn. (supra), “ It may be unfortunate that there should be difference of opinion or disputes in club management, but dissension is a hazard to which all associate action is liable, and clubs no more than other organizations can expect to be exempt from this hazard.” If a member of a yacht club were to say “ that few yachtsmen could sail their own boats, or knew the science of navigation,” it might make him unpopular with some of his fellow-members, but could scarcely be said to reflect upon the club as an organization. Even in their resolution giving their reasons for expelling the relator, the directors did. not say, or even intimate, that relator had been guilty of conduct prejudicial to the club. They resolved, as recited by their secretary, “ that the said publication by Mr. Barry, mentioned in the charge, expressed a contemptuous opinion of the members of the theatrical profession, of which the membership of the club was largely composed; that the said publication was unbecoming an associate of the members of that honorable profession; that it was false and libelous; that it was not explained nor extenuated, nor justified by anything contained in his answer, and was a good and sufficient cause for his expulsion from membership.” We are unable to find from first to last in the charge,
The order should be reversed, with ten dollars costs and disbursements, and motion for a writ of peremptory mandamus granted.
Laughlin, Clarice and Miller, JJ., concurred; Ingraham, P. J., dissented.
Dissenting Opinion
I dissent from the reversal of this order. The Players Club was organized in the year 1888, the particular objects being the promotion óf social intercourse between the representative members of the dramatic profession and of the kindred professions of literature, painting, sculpture and music, and the patrons of the arts. By the constitution to which the relator when he became a member of the club subscribed (Art. 12), it was pro
I think, therefore, that the order appealed from should be affirmed.
Order reversed, with ten dollars costs and disbursements, and motion granted, with fifty dollars costs.