Mernick v. Mernick

In an action for divorce, defendant appeals from an order of the Supreme Court, Kings County, dated July 20, 1971, which denied her motion to dismiss the complaint and for other relief. Order affirmed, without costs and with leave to defendant to serve an answer within 10 days after service upon her of the order to be made hereon, with notice of entry (cf. CPLR 3211, subd. [f]). Defendant’s motion, inter alia, was for an order “ dismissing the complaint upon the grounds that the said complaint fails to state a cause of action ”. *604The complaint is sufficient on its face. The issue raised by defendant consists of new matter which may not be considered on the attack made on the complaint as a pleading. In view of the representations made to us on the argument of the appeal this ease is directed to be placed on the appropriate calendar for trial at the opening of the January 1972 Term of the court. Munder, Acting P. J., Martuscello, Latham, Shapiro and Gulotta, JJ., concur.