Allied 31st Avenue Corp. v. City of New York

Order of the Supreme 'Count, Queens County, dated November 12, 1965, affirmed insofar as appealed from, without costs. We do not consider that the defendants New York Telephone Company and Consolidated Edison Company of New *949York, Inc., waived their right to move to dismiss the complaint on the ground of a defense founded upon documentary evidence because they failed to make such a motion prior to answer and did not allege the defense in their answer (CPLR 3211). Under the circumstances of this case, we deem the motion to be addressed to the sufficiency of the complaint, rather than a motion…