Meadowlands National Bank, Respondent, v. Tri-State Iron Works, Inc., Appellant, et al., Defendants

Meadowlands National Bank, Respondent, v Tri-State Iron Works, Inc., Appellant, et al., Defendants. [MAJORITY] Order, Supreme Court, New York County, entered on February 4, 1976, denying defendant-appellant TriState Iron Works’ application to set aside a default judgment entered against it, unanimously reversed, on the law, the action dismissed and severed as against defendant-appellant for the reason set forth herein. Appellant shall recover of respondent $40 costs and disbursements of this appeal. Service on Albert Miller did not, on this record, constitute service on Tri-State. Plaintiffs repeated claim that Miller was in control and in charge of Tri-State at the time of service upon it, so as to qualify him as its "managing or general agent” (CPLR 311, subd 1), does not suffice to establish such status where the facts in the record do not support such claim. Had we not dismissed this action for lack of jurisdiction, we would have, as an exercise of discretion, granted the motion to vacate the appellant’s default on the merits. Concur&emdash;Markewich, J. P., Birns, Capozzoli, Nunez and Yesawich, JJ.