Harris v. Noque

240 A.D. 728

Opinion

Judgment reversed on the law and the facts and complaint dismissed, with costs. Plaintiff cannot maintain the action for the reason that she shows no possession, which is an essential prerequisite. (Best Renting Co. v. City of New York, 248 N. Y. 491, 495.) The defendant holds under color of title besides being in actual possession; and if plaintiff’s legal title is paramount she must seek her relief in an action in ejectment. Findings of fact and conclusions of law inconsistent herewith are reversed and appropriate findings and conclusions will be made. Lazansky, P. J., Kapper, Hagarty, Carswell and Tompkins, JJ., concur. Settle order on notice.