Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

VILLARD v. MOYER.

(Supreme Court, Special Term, Westchester County. May 25, 1907.) CONTRACTS-CONSTRUCTION-PARTIES-JOINT AND SEVERAL CONTRACTS.

Where parties agreed to carry for the benefit of another a designated amount of corporate stock "pro rata according to the amount of their respective interests" in the corporation for a certain period, the one for whose benefit it was carried to take it up during that period, the obligation was several as to the number of shares to be carried by each, and a party to the agreement was entitled to sue for a failure to take up the shares carried by him, without joining the others.

Action for breach of contract by Harold G. Villard against William L. Moyer. On demurrer to complaint. Overruled.

Wherry & Morgan, for plaintiff.

Ritch, Woodford, Bovee & Butcher, for defendant.

TOMPKINS, J. The complaint alleged that on the 8th day of November, 1902, the defendant and the firm of Goldsborough, Villard & Warner entered into the following written agreement:

"Mr. Moyer is to take the presidency of the banking corporation. He is to be assured of the presidency for five years, with the hearty support of all interests. Salary twenty-five thousand dollars per year. The Metropolitan Life Insurance Company, you and my firm are to carry for Mr. Moyer's benefit one thousand shares of the capital stock of the banking corporation, for a period not to exceed three years, and at an interest rate not exceeding five per cent. per annum. Mr. Moyer is to take up same from time to time, as it is convenient for him to do so, paying therefor the cost price of the stock to us, and interest upon the same at the rate of five per cent. per annum up to the time he takes up the stock. This stock is to be carried by the respective parties named pro rata according to the amount of their respective interests in the banking corporation.

"[Signed]

"We agree to the above. "[Signed]

W. L. Moyer.

G. C. Warner.

"Metropolitan Life Insurance Company. "Thomas H. Hubbard.

"Goldsborough, Villard & Warner."

The complaint also alleges the assignment by the firm of Goldsborough, Villard & Warner of the firm's interest under the said contract to the plaintiff, and performance by said firm of all the conditions of said contract on their part, and that the interest of Goldsborough, Villard & Warner, referred to in the said contract, in the banking corporation, was one-sixth of the total interest of the parties to said contract. The necessary conclusions to be drawn from the facts stated in the complaint are that the firm of Goldsborough, Villard & Warner, the plaintiff's assignors, agreed to carry, and did carry, for the benefit of the defendant, 166 shares of the stock in question, which the defendant obligates himself to take up and pay for within three years from the date of the contract, and that the plain

and 138 New York State Reporter

tiff has tendered to the defendant the certificates for 166 shares of the said capital stock, and demanded payment therefor, and that the defendant has refused to accept the certificates and to pay for them.

The demurrer is on the ground that the Metropolitan Life Insurance Company and Hubbard, who, together with the plaintiff, agreed to carry for the defendant's benefit the 1,000 shares of stock, should be parties to this action, which is to recover damages for breach of the said contract on Moyer's part, and that the complaint does not state facts sufficient to constitute a cause of action; the defendant's point being that the contract obligation, for a breach of which this action is brought, was a joint obligation on the part of the Metropolitan Life Insurance Company, Hubbard, and the plaintiff's assignors, and that any breach of the contract, which was to carry 1,000 shares of the bank stock for the defendant, created a joint liability, and that the defendant cannot be sued severally. That claim would be good if the contract by its terms created a joint obligation and liability only. In my opinion the words in the contract, "This stock is to be carried by the parties named pro rata according to the amount of their respective interests in the banking corporation," thereby expressly limiting the obligation of the plaintiff's assignors to the carrying of onesixth of the one thousand shares, makes the contract a joint and several obligation. The liability of the plaintiff's assignors is limited to the carrying of 166 shares, and the defendant's obligation with respect to the plaintiff's assignors was to take up and pay for those 166 shares within three years from the date of the contract; and while it is true that the insurance company, Hubbard, and the plaintiff's assignors jointly agreed to carry a total of 1,000 shares, yet the obligation of each is expressly limited to the number of shares held by each and the banking institution. Were it not for this limitation in the contract, undoubtedly the obligation would be a joint one, for a breach of which all the parties would have to be made plaintiffs. The only breach of the contract shown by the complaint is the failure of the defendant to take up and pay for the particular 166 shares, which the plaintiff's assignors were to carry, and it may be assumed that the defendant has performed the contract with respect to the other parties. My conclusion is that the contract obligations of the plaintiff's assignors, the insurance company, and Hubbard were several to the extent and amount of the number of shares of banking stock held by each and its value, and that the complaint states a cause of action against the defendant.

The demurrer is overruled, with leave to the defendant to answer the complaint within 20 days, upon payment of costs.

PEOPLE V. SPRIGGS.

(Supreme Court, Appellate Division, First Department. May 24, 1907.) ABDUCTION-INTENT-EVIDENCE.

On a prosecution for taking and detaining a female with intent to compel her to be defiled, evidence of defendant's conduct previous to the time alleged, tending to show his intention, is admissible.

[Ed. Note. For cases in point, see Cent. Dig. vol. 1, Abduction, §§ 18, 19.1

Appeal from Court of General Sessions, New York County.

Robert H. Spriggs appeals from a judgment of conviction of abduction, and from an order denying a motion for new trial. Affirmed. Argued before PATTERSON, P. J., and INGRAHAM, McLAUGHLIN, CLARKE, and LAMBERT, JJ.

Townsend & Kiefer, for appellant.

E. Crosby Kindleberger, for respondent.

LAMBERT, J. The defendant was indicted for the crime of abduction, charged as a second offense, and has been sentenced to 20 years in the state prison upon his conviction. The evidence shows that the defendant had been previously convicted of the crime of assault in the second degree, and had served a term in a state prison, from which he had been pardoned. He is charged in the indictment with having, on the 15th day of June, 1905, feloniously and unlawfully taken and detained against her will a certain female, one Hattie Warren, with intent to compel her by force, menace, and duress, then and there to be defiled, against the form of the statute in such case made and provided, etc.

The chief witness of the prosecution was the said Hattie Warren, and the evidence discloses a state of facts which fully justified the jury in finding the defendant guilty as charged. An examination of the record upon the trial discloses no reversible error. The evidence of Hattie Warren, the victim of the abduction, is fully corroborated in its essential details by other witnesses, and there is no reason apparent why this conviction ought not to stand. The intent of the acts of the defendant constituted an essential element of the crime, and under the authorities it is competent to show conduct on his part tending to establish such motive. The rule is stated by Greenleaf on Evidence, vol. 3, § 15, to be that in proof of intention it is not always necessary that the evidence should apply directly to the particular act with the commission of which the party is charged, for the unlawful intent in the particular case may well be inferred from similar intent proved to have existed in other transactions done before or after that time. See Mayer v. People, 80 N. Y. 364. It seems clear, therefore, that the admission of evidence of the defendant's conduct previous to the time alleged in the indictment, tending to show that he had the intention of making use of this female for the purposes prohibited by the state, was

not error.

The judgment of conviction and the order denying a new trial should be affirmed. All concur.

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PECK V. TOWN OF CATSKILL.

(Supreme Court. Appellate Division. Third Department. May 8, 1907.) TOWNS-CLAIMS-FRESENTATION FOR AUDIT NECESSITY.

Town Law, Laws 1890, p. 1224, c. 569, § 85, authorizes the clerk of a town, with the consent of the town board, to purchase necessary furniture for the use of his office and the safe-keeping of the books of the town, and the expenses thereof shall be a town charge, to be audited and paid as other town charges. A town clerk, with the consent of the town board, bought a safe at an agreed price. Held, that the claim must be audited by the auditors of the town, and the seller cannot maintain an action therefor in the first instance.

Appeal from Special Term, Greene County.

Action by Willard Peck against the town of Catskill. From an interlocutory judgment sustaining a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, plaintiff appeals. Affirmed.

The amended complaint, which has been demurred to for insufficiency, alleges that the defendant is a domestic municipal corporation; that the town clerk of the defendant town, with the consent of the town board thereof, purchased of one Spencer an iron safe, of the value and for the agreed price of $700 and the old safe then belonging to the town; that such new safe was delivered to and accepted by said town clerk with the consent of the town board, and has ever since been and now is in the town clerk's office in said town, and in the possession and use of said town clerk; that Spencer assigned his claim against the town therefor to the plaintiff; that the plaintiff presented his claim for payment to the supervisor of the town and demanded payment thereof, which was refused; and that the same has not been paid. The court sustained the demurrer, and the plaintiff appeals.

Argued before SMITH, P. J., and CHESTER, KELLOGG, and SEWELL, JJ.

John Cadman, for appellant.
F. H. Osborn, for respondent.

CHESTER, J. This complaint presents no cause of action against the town, for the simple reason that the statute provides otherwise, and provides the method of procuring pay for furniture purchased for the use of the town clerk. The statute under which this safe was purchased is section 85 of the town law (Laws 1890 p. 1224, c. 569). That section provides that:

"The town clerk of any town may, with the consent of the town board of his town, purchase or furnish for the town clerk's office all necessary bound blank books for the entering and keeping of the records of his town, and also necessary book and office cases, tables and other furniture for the use and convenience of the office and the safe-keeping of the books and papers of the town, and the expenses thereof shall be a town charge, to be audited and paid as other town charges."

No question is raised here by the respondent that the safe was not necessary for the use of the town clerk and the safe-keeping of the books and papers of the town. The claim of the appellant appears to be that because the price of the safe was agreed upon, and because it was purchased with the consent of the town board, the amount of

the claim is liquidated, and therefore there is no necessity of an audit by the auditors of the town; and some authorities are cited where actions had been permitted directly against a town or county on bonds. or other evidences of debts issued pursuant to statute. These cases proceeded upon the theory that, when obligations of that character have been issued pursuant to law, it becomes the duty of the officials of the town or county to provide means for the payment thereof when they become due. But no such reason exists here, and the statute here clearly provides that the expenses of articles purchased by the town clerk with the consent of the town board, pursuant to the section quoted, shall be a town charge, to be audited and paid as other town. charges. The statute having provided the method to be pursued in procuring payment for such charges, the plaintiff is not authorized to pursue any other remedy, and the town is only liable in the way and by the method pointed out by the statute, and not by a suit against it in the first instance, which would have the effect, if allowed, to nullify the statute itself and prevent an audit by the town board. Bragg v. Town of Victor, 84 App. Div. 83, 82 N. Y. Supp. 212.

The interlocutory judgment should be affirmed, with costs.

concur.

MANEY v. MANEY.

(Supreme Court, Appellate Division, Third Department. May 8, 1907.) 1. HUSBAND AND WIFE-SEPARATION AGREEMENTS-VALIDITY.

An agreement for a separation, made directly between the husband and wife, and requiring him to pay her a certain sum annually, was invalid, and no bar to an allowance of alimony in a subsequent suit for divorce. [Ed. Note. For cases in point, see Cent. Dig. vol. 26, Husband and Wife, § 1046.]

2. DIVORCE-ALIMONY-SECURITY FOR PAYMENT.

By the express provisions of Code Civ. Proc. § 1772, the requiring of security for the payment of alimony is within the discretion of the trial court.

Appeal from Trial Term, Sullivan County.

Action by Charlotte E. Maney against George W. Maney for divorce. Defendant appeals from a portion of an interlocutory judgment directing him to pay alimony to plaintiff and requiring him to give security therefor. Affirmed.

The action is for an absolute divorce. After a verdict in favor of the plaintiff upon specific questions submitted to the jury, an application was made to the court for an interlocutory judgment of divorce and for permanent alimony. Upon such application the defendant's counsel presented to the court an agreement between the parties, dated June 16, 1905, providing for a separation and for the payment by the defendant of the sum of $144 per year for the support and maintenance of the plaintiff, and urged that this agreement was a bar to the granting of permanent alimony by the court in the action. The court, however, granted alimony to the plaintiff at the rate of $5 per week, and directed that the defendant should furnish security for such payment, and from the provisions to this effect contained in the interlocutory judgment the defendant has appealed.

Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.