Opinion
June, 1929.
Order denying motion of defendant Kingsway Associates, Inc., to dismiss first cause of action affirmed, with ten dollars costs and disbursements. Without an expression at this time relating to the extent of relief to which plaintiff may be entitled, we are of opinion that this cause should be retained in equity so that upon the facts an appropriate judgment may be entered determining the rights of the parties. Upon the trial it may be found that damages furnish an adequate remedy or that in lieu thereof appellant convey to plaintiff so much of appellant's premises as are occupied by the plaintiff's present wall occasioned by appellant's excavation. Lazansky, P.J., Kapper, Seeger, Carswell and Scudder, JJ., concur.