Callan v. Lillybelle, Ltd.

Appellate Division of the Supreme Court of New York

Callan v. Lillybelle, Ltd.

20 A.D.2d 877, 248 N.Y.S.2d 530, 1964 N.Y. App. Div. LEXIS 3992

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 21, 1964

StatusPublished

Cited by1 cases

This text of 20 A.D.2d 877 (Callan v. Lillybelle, Ltd.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Callan v. Lillybelle, Ltd., 20 A.D.2d 877, 248 N.Y.S.2d 530, 1964 N.Y. App. Div. LEXIS 3992 (N.Y. Ct. App. 1964).

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Opinion

Order, 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 [878]*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.

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Order, 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 [878]*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.

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Bluebook (online)

20 A.D.2d 877, 248 N.Y.S.2d 530, 1964 N.Y. App. Div. LEXIS 3992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/callan-v-lillybelle-ltd-nyappdiv-1964.

Opinion

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