No. 2 | N.Y. App. Div. | Jul 15, 1899
The court did not acquire jurisdiction to grant affirmative relief to either of the defendants against the other. Section 521 of the Code provides: “ Where the judgment may determine the ultimate rights of two or more defendants as between themselves, a defendant who requires such a determination must demand it in his answer, and must, at least twenty days before the trial, serve a copy of his answer upon the attorney for each of the defendants to be affected by the determination, and personally, or as the court or judge may direct, upon defendants so to be- affected who have not duly appeared therein by attorney.” The provision is peremptory that the party to be affected must be served with a copy of the answer, and no affirmative relief can be granted to one defendant against. another without it. (Ostrander v. Hart, 130 N.Y. 406" date_filed="1892-01-20" court="NY" case_name="Ostrander v. . Hart">130 N. Y. 406; McGuckin v. Millbank, 83 Hun, 473" date_filed="1895-01-18" court="N.Y. Sup. Ct." case_name="McGuckin v. Milbank">83 Hun, 473.) And also with notice of trial. (Edwards v. Woodruff, 90 N.Y. 396" date_filed="1882-11-28" court="NY" case_name="Edwards v. . Woodruff">90 N. Y. 396.) The remedy of the aggrieved party is by motion. (Code Civ. Proc. § 1283; Edwards v. Woodruff, supra, 400.)
It may be added that the only judgment the findings of the-court authorized was a dismissal of the¡ complaint and a dissolution of the injunction, with costs.
There is no authority of law for the bringing of an action by the city or by one branch of ..the city government against another to enforce the performance of official duty, nor by an individual to compel • official action such as requiring the mayor of the city to-execute a contract on the part of the.city.
The order of the Special Term denying the motion of the defendant Kinney should be reversed, with .ten. dollars costs and disbursements of the appeal against the respondents, the City of' Utica, John A. Cantwell and Henry Stappenbeck, together with ten dollars costs of motion at Special Term.
All concurred.
Order of the Special Term denying the motion of the defendant Kinney reversed, with ten dollars costs and disbursements of the appeal against the respondents, the City of Utica, John A. Cant-well and Henry Stappenbeck, together with ten dollars costs of motion at Special Term. ;