
    (80 App. Div. 524.)
    BEECROFT et al. v. NEW YORK ATHLETIC CLUB OF CITY OF NEW YORK.
    (Supreme Court, Appellate Division, Second Department.
    March Term, 1903.)
    1. Trial—Closing to Jury—Exclusion of Remarks.
    Where defendant’s counsel, in closing to the jury, remarked that a claim made by plaintiff was a great surprise to him and to his client, and was evidently a fabrication, it was error for the court to refuse to permit plaintiff’s counsel to read a paragraph from the complaint containing an allegation of such claim.
    Appeal from Trial Term, Westchester County.
    Action by William G. Beecroft and another, as executors of John Beecroft, deceased, against the New York Athletic Club of the City of New York. From an order setting aside a verdict for .defendant and granting a new trial, defendant appeals.
    Affirmed.
    The following is the opinion of KEOGH, J.:
    Whether Mr. Beecroft was using the club’s stage as a convenience in going to his home, or, as a club member, was a passenger therein on his way to the club, was an important question in the case. In the summing up, the defendant’s counsel stated that the claim made by the plaintiffs bn the trial that Mr. Beecroft was on his way to the club to meet by appointment Mr. Hunter, another club member, was a great surprise to counsel and his client; and he strenuously argued that such claim was an afterthought, and the testimony tending to prove it a fabrication. In answering this argument, plaintiffs’ counsel, during his summing up, said that he proposed to read from the fourth paragraph of the complaint to show that it was therein alleged that Mr. Beecroft was on his way to the club, and not to his home, when the accident occurred. This was objected to by defendant’s counsel, and the objection was sustained by the court. I am of opinion that this was error, and that plaintiffs’ counsel had a right to read from the complaint to show that it contained an allegation that Mr. Beecroft was a passenger in the club’s stage, and on his way to the club, at the time that he was killed.
    It was also error to charge the jury that, if the accident happened as the driver said it did, then the plaintiff could not recover. It was, I am convinced, a question to be decided by the jury whether, if the occurrence took place as the driver testified it did, he was not guilty of negligence.
    Both errors are, in my judgment, so plain and grave as to demand the granting of a new trial.
    Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and HOOKER, JJ.
    Isaac N. Mills and John C. Gulick, for appellant.
    George C. Appell, for respondents.
   PER CURIAM.

Order affirmed on the opinion of KEOGH, J., with costs.  