Opinion
February, 1896.
Blair Rudd, for appellant.
Welch Daniels, for respondent.
It is not questioned that Hart sent his resignation as director to the president of the company before the summons was served upon him, although it had not been formally accepted. 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. There remained the president, upon whom service of process could be made. The same consideration renders it unnecessary to discuss the charge that the resignation of Clark and another director, Kellam, was intended to defeat the employees of the company in their efforts to recover against it. If all the directors had resigned with that intention, a question of great interest would be presented, which it is not necessary now to consider. Carnaghan v. Exporters Producers' Oil Co., 11 N.Y. Supp. 172; Smith v. Danzig, supra.
At the time of the service of summons in these actions upon him, Clark notified the person making the service that he had sent in his resignation, and that he doubted whether he was the proper person to be served. This prompt notification is satisfactory evidence that he had no intention of prejudicing the rights of creditors by his resignation.
The judgments must be reversed.
McADAM and BISCHOFF, JJ., concur.
Judgments reversed, with costs.