
    World Literature Crusade, Respondent, v Florence B. Hayner, as Administratrix of the Estate of Charlotte L. Bulson, Deceased, Appellant, et al., Defendant.
   Appeal from an order of the Supreme Court at Special Term, entered January 9, 1978 in Rensselaer County, which denied a motion to dismiss the complaint. The deceased created an inter vivos trust during her lifetime and funded it by a savings account with title in her name and the plaintiffs name, as trustees, for the named beneficiaries including the plaintiff. Following the decedent’s death, the defendant administratrix, without the knowledge of plaintiff, secured title to the bank account as administratrix and has expended some moneys therefrom. The plaintiff brought this action seeking an accounting and money judgment, together with a permanent injunction, restraining either defendant from exercising any control over the account. The defendants duly answered on April 13 and 20, 1977 and, on November 22, 1977, the administratrix moved to dismiss the complaint on the grounds that the plaintiff was without legal capacity to sue, the complaint failed to state a cause of action, and a defense founded upon documentary evidence (see CPLR 3211, subd [a], pars 1, 3, 7). Special Term denied the motion in all respects. We agree with the conclusion of Special Term that the defense of legal incapacity to sue and a defense founded upon documentary evidence were waived pursuant to CPLR 3211 (subd [e]) and 3012 by not raising such issues by motion prior to answering and/or not raising them in the answers. We also find that Special Term correctly determined that upon the complaint itself and the pleadings and papers before it, the complaint states a cause of action. In affirming the order appealed from, we do not consider any issues posed for the first time upon this appeal by the administratrix and we go no further than the papers before Special Term. Order affirmed, without costs. Mahoney, P. J., Sweeney, Kane and Herlihy, JJ., concur; Main, J., not taking part.  