
    The People of the State of New York, Plaintiffs, v. Charles Johnson et al., Defendants.
    (Supreme Court, Erie Criminal Term,
    December, 1897.)
    Athletic clubs.— Lease of a part of a building — When such a club cannot give exhibitions, for which tickets are-sold to the public.
    The provisions of the Horton Law (Penal Clode, § 458), permitting sparring exhibitions, with proper- gloves, to be. held by a domestic incorporated athletic association in a building leased by it, for athletic purposes only, for at least one year, are not violated by the fact that such an association does not occupy, under lease, an entire building but merely rents a portion oi its third floor, while the rest of the .building is occupied by other tenants; but such an association, incorporated under the Membership Corporations Law (Laws of 1895, chap. 559), cannot give sparring exhibitions, for 'which admission tickets are sold to the public at large; and this, although the tickets, in order to avoid the effect of the statute, are- denominated upon their face, “ Membership Ticket.”
    Proceedings under section 463 of the Penal Code, requiring defendants- to give a bond that they will not for one year violate section 458 of the Penal Oode.
    Simon Fleischmann and Philip V. Fennelly, for the People.
    William E. Mackey and Charles J. Thomas, for defendants.
   Woodward, J.

This is a proceeding under section 463 of the Penal ;Oode to require defendants to give a bond that they will not for -one year violate section 458- of the Penal Code, which prohibits, among other things, prize fighting absolutely, and sparring exhibitions except under • certain restrictions.

The evidence taken shows that the defendants on the evening of December 16, 1897, were about to engage in a sparring exhibition in the rooms of the Live Stock Exchange .Athletic Club of Buffalo, for which admission tickets had been sold to the public at large.

The statute, so far as applicable to this case, provides substantially that a person who engages in a public or private sparring exhibition, with or without gloves, within the state, at which an admission fee is charged or received,, directly or indirectly, is guilty of a misdemeanor, provided, however, that .sparring exhibitions with proper gloves may be held by a domestic incorporated athletic association in a building leased by it for athletic purposes only for at least one year. Penal Code, .§ 458.

The association in question was incorporated for athletic purposes under the Membership Corporations Law, being chapter 559 of the Laws of 1895, and the club occupied a portion of the third floor of a large brick building, the remaining portions of which building were occupied by other tenants for office and other business purposes.

The People contend that the law was violated, in this instance, in the first place, because the club does not occupy an entire building devoted to athletic purposes only. To this proposition I cannot give assent, as I think the requirements of the statute in this respect are reasonably complied with when an incorporated association occupies for its exclusive purposes a portion of a building.

The next contention of the People is more serious, and in view of the importance of having a judicial construction of this section of the Penal Code, known as the Horton Law, and having in mind the fact that the People could not appeal from a decision adverse to them, and that the provisions of the act should have the construction of the upper courts,.I have concluded to give the People the benefit of a decision of the question, which in any event is a close one. The point raised and which has impressed me with much force is that a corporation organized under the Membership Law cannot charge an admission fee for sparring exhibitions given under its auspices. The Membership Law has superseded the older social club law, and it provides, among other things, that the term “ membership corporation does not include a stock corporation or a corporation organization for pecuniary benefit. 2 B. S. (9th ed.) 1438, § 2. N

The same act further provides that a membership corporation may be created thereunder for any lawful purpose, except a purpose for which a corporation may be created under any other article of the chapter or any other general law. Id. 1442, § 30.

■ The Business Corporation Law of the state provides for corporations organized for any lawful business purpose and the issuing of stock,' etc. Id. 1384, § 2.

All of these provisions as to corporations were in force prior to the passage of the Horton Law, which allows sparring exhibitions by incorporated associations as above referred to.

The contention of the People, therefore, seems reasonable that the legislature did not intend, in passing the Horton Law, to allow associations incorporated under the Membership Law to engage in business or occupations for pecuniary profit, but intended to allow such associations to have sparring exhibitions for.its members privately, or, in any event, did not intend to permit such associations to charge admission fees to such entertainments. This construction appears to have been put upon the law by many of the 'associations themselves, as the evidence shows that the association here involved, as well as others, have printed upon 'their tickets of admission the words, Membership Ticket,” which the counsel. . for the defendants fairly admitted in court was a mere subterfuge supposed to bring the clubs within the protection of the Horton Law.

Under the circumstances, I have concluded to hold the defendants each under a nominal bond of $100, as provided in section 463 of the Penal Code.

Ordered accordingly.  