Order, entered on December 20, 1966, denying defendant's motion to dismiss the complaint for insufficiency or for summary judgment, unanimously affirmed, without costs or disbursements to either party. We do not reach the question of whether plaintiff is entitled to the equitable relief of an accounting. The complaint states a cause of action for money damages and issues of fact bearing upon plaintiff's right thereto have been raised. (See Lane v. Mercury Record Corp., 21 A.D.2d 602, affd. 18 N.Y.2d 889.) Plaintiff is denied costs because of the inclusion in its brief of matter outside the record, to wit: excerpts from defendant's pretrial testimony.
Concur — Stevens, J.P., Eager, Capozzoli and McNally, JJ.