I would grant defendant Florsheim’s motion to dismiss the complaint under CPLR 3211 (subd [a], par 1) — a defense founded *487upon documentary evidence — and grant plaintiffs leave to serve an amended complaint which takes cognizance of the fact that an action was begun by defendants on plaintiffs’ behalf. The action is for alleged malpractice by defendants’ attorneys as attorneys. The complaint contains essentially two allegations of fact as to malpractice, (1) an allegation that defendants never instituted an action on plaintiffs’ behalf, and (2) that defendant Florsheim advised plaintiff that he had obtained a settlement in the sum of $4,500 and requested plaintiff to sign a release, which she did, although it really was never delivered. It appears undisputable from court records that in 1970 defendants did institute an action on plaintiffs’ behalf in the Civil Court. The other allegation of fact, while certainly alleging reprehensible conduct on the part of defendants, is not shown to have caused any damage to plaintiffs. The remaining allegations of the complaint are essentially conclusory. It is apparently plaintiffs’ present contention that even if defendants did institute an action on plaintiffs’ behalf 13 years ago, they have since neglected the action. Whether that be true or not, the complaint should not proceed on a premise (that the action has not been commenced) which is shown by documentary evidence not to be so.