Debt is the proper form of such action. 3 Paige, 409, 415, 416; Bank of Poughkeepsie v. Ibbotson, 24 Wend. 473; Garrison v. Howe, 17 N.Y. 458; Simmons v. Spencer, 15 id. 548; Chandler v. Hoag, 2 Hun (N.Y.), 613; Union Iron Co. v. Pierce et al., 4 Biss. 327; Dozier v. Thornton, 19 Ga. 325; Bullard v. Bell, 1 Mas. 243; Culver v. National Bank of Chicago, 64 Ill. 530; Steele v. Dunne, 65 id. 298. Mr. Walter D. Davidge for the defendants in error.
Acceptance was not necessary to make the resignation effective. Chandler v. Hoag, 2 Hun, 613; 63 N.Y. 624; Smith v. Danzig, 64 Hun, 320; Morawetz on Corp., § 563. The fact that the withdrawal of Hart from the company would reduce the number of its directors to less than three, the minimum allowed by law (Business Corporation Law, § 2, sub. 7; Laws of 1892, chap. 691), does not require us to hold the resignation ineffectual as regards the plaintiff or other creditors.
The presumption, therefore, is that Mott continued a director, and that he was a director when the indebtedness was contracted. Bank of Metropolis v. Faber, 38 A.D. 163. As the New Jersey statute prescribing the term of office of directors is deemed the law here applicable, it is unnecessary to discuss the point whether the acts of Mott constitute a valid resignation, which might be sufficient in the case of a director of a domestic corporation to free him from liability for subsequent debts. Sinclair v. Fuller, 158 N.Y. 612; Blake v. Wheeler, 18 Hun, 496; Osborne Cheesman Co. v. Croome, 14 id. 164; Chandler v. Hoag, 2 id. 614; Chemical Nat. Bank v. Colwell, 132 N.Y. 250. There is nothing in section 60 of the Stock Corporation Law which militates against the application of the New Jersey statute. Where a corporation, whose by-laws provided that its directors should hold office for a year, or until their successors were elected, held its last election for directors in 1892, it was decided that the directors then elected would, by virtue of the by-laws and the statutes, be presumed to have been acting as directors in January, 1897. St. George Vineyard Co. v. Fritz, 48 A.D. 233. It is clear that the enabling act of the corporation in question is, at least, as binding upon its directors as were the by-laws of the company in the case cited. Owing its existence in New Jersey, the corporation is controlled by the laws of that State, which may and do determine the number of directors, their tenure of office and the places where they must reside.