
    Joseph L. Raffaeli, Appellant, v. Elizabeth E. Pomeroy, Respondent.
    
      Real property — ejectment — action in ejectment not maintainable against one not in possession and not claiming title.
    
    
      Raffaeli v. Pomeroy, 193 App. Div. 958, affirmed.
    (Submitted January 27, 1922;
    decided February 28, 1922.)
    Appeal from a judgment, entered November 18, 1920, upen an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. The action was in ejectment. The Appellate Division held: “ 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.”
    
      Ralph Earl Prime, Jr., for appellant.
    
      John J. Finn for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Hogan, Cardozo, Pound, Crane and Andrews, JJ. Absent: McLaughlin, J.  