No matter how the case is glossed, the tragic but undeniable facts are that this adult plaintiff dived from an unlighted and unsupervised dock, which he knew was closed to swimmers, into unfamiliar waters obscured by mist and darkness.
His recovery against the village cannot be affirmed by simply assuming negligence on the part of the village and citing Caldwell v. Village of Island Park (304 N. Y. 268). In the Caldwell *166case, an infant plaintiff was injured when she was on a beach at a time when it was open to the public. Furthermore, the plaintiff’s lack of concern for his own safety cannot be explained away on a burden of proof basis by comparing him to amnesiacs (Wartels v. County Asphalt, 29 N Y 2d 372) or wrongful death victims acting under emergency circumstances (Rossman v. La Grega, 28 N Y 2d 300).
The fact is that plaintiff was a trespasser. On the night of the accident, he was swimming in an area that was closed and he knew it was closed.
There is no question that the park area was lighted and was open to the public generally for walking or sitting at night. If plaintiff had been injured there he would have been an invitee entitled to defendant’s reasonable care. (Caldwell v. Village of Island Park, supra.) But it must come as a shock to the village fathers to have the court extend that invitation and find that the beach area and docks were open to the public for swimming on a 24-hour basis, day or night. Without doubt, the village was at liberty to limit its invitation with respect to the area used (Sanders v. Favorable Realty Corp., 290 N. Y. 591) and facilities used (Brown v. American Mfg. Co., 209 App. Div. 621) as well as times of day swimming was permitted (Firfer v. United States, 208 F. 2d 525, 527). It did so here.
The majority makes much of the fact that there were no signs or barriers prohibiting use of the dock for swimming at night and the absence of any regulating ordinances by the village. These omissions were not the proximate cause of injury. Jacques admitted that he knew the dock was closed and that he was not supposed to be there1. In view of this, it is difficult to know what kind of signs or barriers would have been needed to stop him. Furthermore, the absence of signs and barriers does not imply an invitation to use the dock. (Cunningham v. City *167of Niagara Falls, 242 App. Div. 39, affd. 269 N. Y. 644; Pope v. State of New York, 198 Misc. 31, affd. 277 App. Div. 1157.)
The majority also base liability on inferences which presumably permitted the jury to find the plaintiff, if not an invitee, was a licensee swimming with the express or implied permission of the village. (See Meiers v. Koch Brewery, 229 N. Y. 10.) Thus, it is inferred that volunteer firemen had a special privilege to swim after hours. That claim was made by Jacques. It was not supported by any other witness and Jacques admitted that he never discussed such a special privilege with anyone and never heard it discussed. It was an assumption he made, but it was without any demonstrated basis in fact.
Next, it is inferred that the policing of the area was “ casual ”. The evidence is just the opposite. By all accounts, the police patrolled the beach regularly. Jacques’ companions admitted the police had stopped them from swimming at night before, the latest incident having been only three or four nights earlier. On the night in question, fireman Strack and his passengers hid in the car to avoid detection when the police patrol came into the park. Two other firemen, Coolidge and Conway, were on the beach. When the police stopped and told Coolidge he and his friends (including Jacques), must get out, that there would be no swimming, Coolidge answered that they had already been swimming and were leaving. The plaintiff was on the dock at that time and denied hearing any part of this conversation (although in earlier testimony he said the police only told them to keep the noise down). After the police left, they all went swimming. This evidence does not support a finding that the village permitted people to swim at night or knowingly acquiesced in that use of the dock. At the time of his injury, the only duty the village owed plaintiff was to refrain from affirmative acts of negligence or intentional injury. (Cunningham v. City of Niagara Falls, supra; Ryan v. State of New York, 13 Misc 2d 282, affd. 19 A D 2d 696; see, also, Restatement, Torts 2d, § 333 et seq.) On this record, it was error to submit the question of whether plaintiff was an invitee or a licensee to the jury. The judgment should be reversed, and a new trial ordered. (Sheingold v. Behrens, 275 App. Div. 671, 686.)
Hbrlihy, P. J., Cooke and Sweeney, JJ., concur with Kane, J.; Simons, J., dissents and votes to reverse-in an opinion.
Judgment affirmed, with costs.