slightly different angle and stresses the "recurring contractual" nature of the obligation but it really comes down to the same thing. When a club member, in order to exercise certain privileges and use certain club facilities in connection with them, assumes a binding obligation to pay a fixed definite charge, which obligation extends over a considerable period of time and will be automatically renewed until he withdraws from his preferred position as a user of the privileges in question (a "recurring contractual obligation") he really has become one of a particular class of club members. That is, if we look at the substance of the thing and not at the terminology used in the by-laws, resolutions, notices and the like, and I think that everyone will agree that the form should not control the actuality.
In the case at hand it is true that the by-laws divide the Merion Club membership into nine classes, and that golf-playing members are not mentioned in the classification as distinct from any other class, but I cannot see any reason why members who have acquired the right to play golf on the club links -- a right which club members do not have by virtue of their membership -- by paying a regular additional annual assessment are not just as much a class of members as those, say, who by paying more than the minimum regular dues get the right to have admission cards issued to the ladies of their immediate families which entitle the ladies to all the privileges of the grounds and the main club house ("family members" in the classification made by the by-laws.)
There is no question about the binding nature of the obligation assumed when a member applies for and is granted a golfing status. If this occurs before January 1st he is obligated to pay $110 in two installments on the first of January and the first of July. If he plays six months and wishes to give up golf on the first of July he cannot avoid liability for the second installment unless there happens to be a waiting list for golf privileges and the Club chooses to relieve him and accept someone else in his place.Unless he notifies the Club before December 31st he will be automatically liable for another year's golf fees. This is exactly the same provision as applies to the regular membership dues, and resignations from the Club itself must be presented before December 31st or else another year's liability will be incurred.
If he fails to pay the golf fees and continues in such default after being duly posted he loses not only the right to play golf but membership in the Club, because the bylaws provide that "in case of nonpayment * * * such persons shall be subject to the same penalties as provided for the nonpayment of dues."
Only a limited number of members may be admitted to yearly golf privileges and a regular waiting list is maintained for excess applications. As I understand the testimony, though it is not very clear and may not be of great importance, the rule has been that if the golfing quota was not full, club members generally were permitted to use the course only four times a year upon paying a daily greense fee, the only difference between them and non-members being that the latter had to be introduced as a guest of a member. When the quota was full and there was a waiting list, club members were allowed to play as often as they pleased at the daily rate.
The plaintiff agrees that the test laid down by Judge Morton and stated above is the correct rule. His argument that it does not apply to him comes down in effect to the point that there is no class of golfing members eo nomine. If the form is to control he is right. If the substance, I think he is wrong.
I find as a fact that the plaintiff's payment of $5.50 which is the subject of this suit was a charge applicable to a particular class of members.
The plaintiff's request for conclusions of law are denied. The defendant's requests for conclusions of law are all affirmed.
I find a verdict for the defendant and judgment may be entered thereon.
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