
    Thomas Nolan, Resp’t, v. Rockway Park Improvement Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 15, 1895.)
    
    Appeal—Evidence.
    A finding of the jury, based upon competent evidence, will not be interfered with on appeal.
    6Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion fór a new trial.
    
      A. A. Gardner, for app’lt; Stephen C. Baldwin, for resp't.
   Van Brunt, P. J.

A different question seems to be presented upon this appeal frorri that which was presented when the case was previously before this court. It is claimed upon the part of the plaintiff that he was upon the beach, in question under a permission given by the defendant’s superintendent, in good faith, intending to serve a process, and that the defendant’s servant ejected him while the license remained unrevoked. It was claimed upon the part of the defendant, however, that this claim of permission and of attempting to serve process was a fiction, and that the plaintiff went upon the premises in question simply for the purpose of vindicating his rights as a citizen of this state so to do. The jury found by their verdict that the plaintiff's claim was correct, and gave him damages accordingly. We do not see that we can interfere with the finding of the -jury, there being competent evidence upon which it was found. It is further claimed that the learned court erred in the commencement of its charge to the jury,, wherein it stated that the first question for the jury to determine was:

“Had the defendant company actually appropriated and applied the beach as a bathing'place in connection with this upland ? If it had, then the plaintiff, under the opinion of the appellate branch of this court, had no right to trespass upon the beach.”

Upon the attention of the court being called to this proposition, the court withdrew it from the consideration of the jury, construing the opinion of the court upon the previous appeal, and charging the propositions of the defendant in respect to its title and right of exclusive possession and right to exclude the plaintiff. It is difficult to see how the learned judge could have been more explicit in withdrawing the question object to from the consideration of the jury. They were expressly instructed that, unless the plaintiff had permission to go upon the beach, and intended in good faith to serve the process, the defendant had the right to eject him. We think the judgment must be affirmed, with costs.

All concur.  