Order affirmed on the opinion of Mr. Justice Keogh, with costs.
Goodrich, P. J., Bartlett, Woodward, Hirschberg aud Hooker, JJ., concurred.
*525The following is the opinion of Keogh, J., delivered at the Westchester Trial Term:
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 on 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 4th 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.