
    William G. Beecroft and Edgar C. Beecroft, as Executors, etc., of John R. Beecroft, Deceased, Respondents, v. The New York Athletic Club of the City of New York, Appellant.
    Second Department,
    March 9, 1906.
    Negligence — membership corporation liable for personal injuries received through negligence of its servants — evidence — statement of member of such corporation to accident insurance company that he was being carried home not conclusive.
    A membership corporation organized as an athletic club, sustained by membership dues and maintaining a clubhouse, is liable for injuries resulting in the death of a member received by the negligent act of the driver of a wagon used by said club for conveying members to the clubhouse.
    The fact that the decedent, after the injury, in complying with the conditions of certain accident insurance policies, stated that his injuries were received while being carried to his home, does not prevent a recovery against said club when there is evidence that in fact he was being driven to the club in the club conveyance in order to keep an engagement with a friend.
    Appeal by the defendant, The, New York Athletic Club of the City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 6th day of March, 1905, upon the verdict- of a jury for $9,500, and also from an order entered in said clerk’s office on the 27th day of March, 1905, denying the defendant’s motion for a new trial made upon the minutes.'
    
      Isaac N. Mills [John C. Gulick with him on the brief], for the appellant.
    
      William S. Cogswell [Edgar C. Beecroft with him on the brief] for the respondents.
   Woodward, J.:

The defendant maintains a clubhouse on Travers Island. Plaintiffs’ testator was a member of the defendant, and was injured while being carried in one of the defendant’s wagons from the railroad station at Pelham Manor, Westchester county, to defendant’s clubhouse on the island. Upon the trial of the action there was evidence which warranted the jury in finding that plaintiffs’ testator had made arrangements to meet one Hunter at the clubhouse that evening on the arrival of the train at about • six o’clock; that plaintiffs’ testator arrived on such train ; that the defendant’s wagon was there in charge of one of its servants, and that the deceased entered the wagon, after dismissing his own conveyance which had met the train, and was being driven to the clubhouse when the driver negligently drove the wagon against an obstruction, throwing the decedent to the ground, producing injuries from which he subsequently died. The jury returned a verdict in favor of the plaintiffs for the sum of $9,500, and this was increased, over 'the objection and exception of the defendant, by an extra allowance of five per cent. The defendant appeals from the judgment and from the order denying a motion for a new trial upon the minutes.

it is urged upon this appeal that the defendant corporation is not such a corporation as to be liable to its members for negligence, and counsel frankly admits that he has been unable to find any. authority upon this direct point, but urges it as a reason for reversal. We are of opinion that there is no ground for this contention, an athletic association, conducting clubhouses, and sustained by membership dues, not being within the reason of the rule which limits the liabilities of hospitals and other organizations organized' for the purpose of performing a service which belongs to the public. It hardly seems worth while to seriously consider this question in the absence of some principle which might properly relieve the defendant of its obligations to those whom it has injured through its negligence.

It was shown upon the trial that the plaintiffs’ testator had, for the purpose of complying with the conditions of certain accident insurance policies, submitted affidavits in which it was stated that his injuries had been received while being carried to his home, and it is urged upon this appeal that these statements should have been accepted as conclusive, and that, as the deceased was not being carried to the clubhouse, the defendant owed him no duty. There was evidence going to show that the deceased was, in fact, being carried to the clubhouse, and the court charged that if this was not the case the plaintiffs had no right to recover, and the jury having found in favor of the contention of the plaintiffs, we see no reason for disturbing the verdict. The decedent, as a member of the. club, had a right, no doubt, to make use of the club wagon to be carried from the train even to his own residence, if that was along, the way, as it appears to have been, and he was entitled to reasonable care. But the evidence was'such as to warrant the jury in finding,, within the . limits of the charge, that decedent was actually on his way to the club, and under such circumstances he certainly had aright to the exercise of reasonable care on the part of the defendant and its servants. The1 mere'fact thatrthe decedent.may have made, •a general statement," in complying with a requirement of his accident policies, that he was injured on his. way home from the- station, was not inconsistent with the.theory on which the case was submitted to the jury, that he was on-his way to the club. He. was, g.eñ-1 erally 'Speaking, going to his home;1 lie merely intended stopping at the club to meet a friend and was then to go to his home for dinner.. The requirement of the accident policy was a statement showing the circumstances of the accident, and the: question of whether the-decedent was going to his home dr to the club was of no material importance there, however important it might be in an action for negligence against the defendant, and it would be véry remarkable if an incidental statement of this character should be allowed to control the positive evidence in support of the plaintiff’s theory of the accident and of the defendant’s liability.

In view of the conclusion which we have reached upon the point last above considered, the alleged error of the court in its charge to the jury is without force, and after "an examination: of. the other errors alleged we are of opinion that the case was properly submit-* ted to the jury upon a charge which was as favorable to the defendant as it had any right to expect, and that the verdict should not be disturbed.. . '

' We are equally clear, however, that this was not. such a difficult and extraordinary case as "to justify an extra allowance. It was merely a negligence case, depending Upon no special features.

■The judgment should be modified by striking out the extra allowance,, and judgment as modified and order should be affirmed, -without costs. ' ’ ‘

Present-T-Hibsóhbebq-, P; J., Woodwabd, Gaynok, Eich and Hilleb, JJ.

Judgment, modified by striking out the provisión for extra allowance, .and as modified judgment and -order unanimously affirmed) without costs; ' ■  