
    Clemente Bros. Inc., Appellant, v. Peterson-Packer Fuels, Inc., Respondent.
   Aulisi, J.

Appeal from an order of the Supreme Court at Special Term, Rensselaer County, whieh dismissed plaintiff’s complaint for failure to state a cause af action pursuant to rule 112 of the Rules of Civil Practice (cf. CPLR 3212). We conclude that the Special Term properly dismissed the complaint. It is our view that the railroad could retain to itself and its successors the right to keep the buildings or remove them and be recompensed by the defendant for such removal. However, in our opinion, no cause of action accrued in plaintiff assignor’s favor until it had incurred the expense of removing the buildings, structures or fixtures from the leased premises after defendant’s refusal to do so after demand. We decide no other issue. Order affirmed, without costs.

Gibson, P. J., Herlihy, Reynold's and Taylor, JJ., concur.  