Callan v. Lillybelle, Ltd.

¶1Order, entered on December 13, 1963, denying defendant-appellant’s motion to vacate and set aside the service of the summons, unanimously reversed on the law and on the facts, with $20 costs and disbursements to appellant, and the motion granted, with $10 costs. The contested service is alleged to be valid as having been made upon a “managing agent” of the defendant corporation pursuant to subdivision 8 of section 228 of the Civil Practice Act. Examining the evidence adduced before the Referee in its aspect most favorable to the plaintiff and affording the statute a liberal *878construction, it must however be concluded that the person served was not such a “managing agent”. He had neither the responsibilities nor the authority of such a status, nor did his duties encompass the requisite elements of discretion and judgment (see Holzer v. Dodge Bros., 233 N. Y. 216; Barrett v. American Tel. & Tel, Co., 138 N. Y. 491; Taylor v. Granite State Provident Assn., 136 N. Y. 343; Baker v. New York Cent. R. R. Co., 258 App. Div. 854). Concur — Breitel, J. P., McNally, Eager, Steuer and Staley, JJ.