Barry v. The Players

Scott, J.: 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 [705] music, and the patrons of the arts; the creation of a library-relating especially to the history of the American stage, and the preservation of pictures, bills of the play, photographs and curiosities connected with such history.” The club has a membership of 1,034, of whom forty per cent are members of the dramatic profession or in some way connected in business or art ■with the stage. How many are actors does not appear. The constitution of the club provides that any member may be suspended or expelled “for cause” by a vote of two-thirds of the board of directors, notice and a copy of the charges having been given to the accused member. The relator has been a member of the club since 1907, and is a writer and author by profession. On April 15, 1911, relator was served with a charge of misconduct and a notice of hearing thereon. The charge read as follows: “ That Mr. Richard Barry, a member of the Players, has been guilty of conduct unbecoming an associate of members of an honorable profession, in publishing of and concerning them the following libelous statement in Pearson’s Magazine for March, 1911: ‘Very few persons on the stage know how to think. In fact, few of them know how to feel, though they all make some sort of bluff at it. Education is unnecessary; gem eral association, with humanity is tabooed, and few of the profession read enough to have any grasp on things of the mind. So the matter of sex never enters into the question of pay, except it be to favor the woman. ’ ” The relator did not appear .in person in answer to the charge, although he offered to do so if requested, but he submitted a written answer in which he protested that nothing in the article upon which the charge was founded reflected expressly or by fair implication upon those members of the dramatic profession who were members of the respondent club. He also submitted the text of the whole article written by him in which the paragraph quoted in the charge appeared. This article, which had appeared in a popular magazine, was written in the fashion which has become familiar to magazine readers of the present day, in which literary style and grace is sacrificed to vigorous and dogmatic expression, doubtless with a view to arresting the attention of general readers. The purpose of the article was to demonstrate [706] what the writer believed to be the disadvantage at which women found themselves when placed in competition with men in industrial pursuits.' He found that the dramatic profession furnished an exception to the general rule, and alleged that “ on the stage one never hears complaint that men get more money than women.” Then followed the words quoted in the charge, which were apparently intended to account for the phenomenon that, on the stage, women were as well paid as men. No question is made as to the regularity of the proceeding leading to relator’s expulsion,, which' followed upon the presentation of his defense, and the only question presented by the appeal is as to the sufficiency of the charge to justify an expulsion. It will be observed that the authority given by the constitution to the directors is to expel or suspend “ for cause, ” but no precise definition is given as to what shall be deemed to constitute cause. It is generally agreed, however, both in this country and England, that sufficient cause must consist either of an offense against the member’s duty as a corporator, or of a serious offense against his duty as a citizen, or of an offense against both duties (Evans v. Philadelphia Club, 50 Penn. St. 107; People v. Medical Society of County of Erie, 24 Barb. 570), and in the nature of the case this must necessarily be so, since a club has no authority or jurisdiction to deal with a member except in his relation to the club. In order to justify expulsion, therefore, a member must be charged with and proven guilty of conduct which can, in some fair sense, be said to be “ improper and prejudicial to the club.” (Loubat v. Le Roy, 15 Abb. N. C. 1, 20.) The English courts have, perhaps, gone somewhat further than have our own in conceding finality to the judgment of a club committee as to what conduct is improper and prejudicial, but I do not understand that there is any substantial difference of opinion as to the rule that to justify expulsion the cause must be conduct “ improper and prejudicial to the club,” which I understand to mean conduct which in some way, or to some degree, tends to injure the club materially, or in reputation, or is contrary to and destructive of the purpose of its organization. Otherwise a member might .be expelled arbitrarily, and upon insufficient grounds, and this may not be [707] done. (Matter of Haebler v. N. Y. Produce Exchange, 149 N. Y. 414; People ex rel. Ward v. Uptown Assn., 9 App. Div. 191.) 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, [708] or in the judgment rendered thereon, any declaration on the part of the directors that, in their opinion, the conduct of the relator had been prejudicial to the club. On the contrary, the sole conclusion which we may draw from their utterances is that relator had proven himself to be an undesirable member of the club. This is not sufficient to warrant expulsion, although it would be a quite sufficient reason for a refusal to elect him if he were an applicant for membership. The learned counsel for the respondent, however, asks us to go further than any court has yet gone, and to hold that the expulsion should be sustained, because it is very improbable that, after the publication of his article, the respondent, if. an applicant for membership, could be elected. • That test, however, cannot be applied for the very sufficier.', reason that, speaking generally, no man has any legal right to become a member of a social club, and may be refused election for any reason at all, or capriciously or arbitrarily, but, once having become a member, he is entitled to remain such so long as he abides by the rules of the club, and performs his duty as a member, and cannot be arbitrarily or capriciously expelled. On the whole, while the relator’s article may have given just offense to some of the club’s members, we cannot say that its publication was prejudicial to the club or constituted conduct incompatible with relator’s duty to the club. The expulsion was, therefore, unjustified. 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.