Opinion
October, 1920.
Present — Jenks, P.J., Mills, Blackmar, Kelly and Jaycox, JJ.
Judgment and order reversed, and complaint unanimously dismissed, with costs. An action in ejectment cannot be maintained except against a person in actual possession or claiming title to the property or an interest therein. ( Kraus v. Birnbaum, 200 N.Y. 130.) There is no evidence that defendant ever had physical possession of the area in question, nor any pretense that she claimed any title thereto or interest therein. The retaining wall and the area were built by the predecessor in interest of the plaintiff as well as of the defendant. It is not, therefore, a case where the defendant has erected or maintained a retaining wall that encroaches upon plaintiff's property. The fact that the physical condition benefited the defendant by permitting more light and air to reach her premises, does not constitute a possession on her part which will sustain an action of ejectment. The defendant was under no obligation to improve the property of plaintiff, as she is required to do by this judgment.