Sophie Cohn, Respondent-Appellant, v. Josephine A. Tucker, Appellant-Respondent, and Others, Defendants

Sophie Cohn, Respondent-Appellant, v. Josephine A. Tucker, Appellant-Respondent, and Others, Defendants. [MAJORITY] Action for a mandatory injunction compelling the removal of an obstruction placed and maintained by defendant Tucker upon her property, in violation of a setback covenant. On appeal by defendant Tucker, judgment granting such equitable relief and order denying defendant Tucker’s motion to set aside the judgment and to refer the matter to the official referee for a rehearing unanimously affirmed, with costs. On appeal by plaintiff, judgment, in so far as it fails to award her costs, unanimously' affirmed, without costs. By the stipulation that the referee might fix damages instead of directing the removal of the building, the plaintiff, in the circumstances here shown, in view of what had previously transpired, did not waive her right to the equitable relief sought. Present — Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ.