
    Orville Balch, Respondent, v. The City of Utica, John A. Cantwell, as Clerk of the City of Utica, and Henry Stappenbeck, Respondents, Impleaded with Thomas E. Kinney, as Mayor of the City of Utica, Appellant.
    (No. 2.)
    
      Affirmative judgment against one co-defendant in favor of another —• the former must be served with a copy of the answer and notice of trial — suit to enforce official action in favor of one and against another depan'tment of a city government or by an individual.
    
    A defendant xvho interposes an answer demanding affirmative relief against his .co-defendants, cannot obtain such relief unless he serves such co-defendants-with a copy of the answer and a notice of. trial. Where such relief is improperly granted, the remedy of the party aggrieved is by motion.
    
      Semble, that an action cannot be maintained by a city, or by one branch of the city government against another branch thereof, to enforce the performance of an official duty, nor by an individual to compel official action, such as to require the mayor to execute a contract on the part of the city.
    Appeal Ay the defendant, Thomas E. Kinney, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Oneida on the 14th day of April, 1899, denying his motion to vacate and strike out from the judgment entered in the action the following part thereof, to wit: “ II. That said mayor and clerk sign the said contract as directed by the common council of said city,” and amending the judgment accordingly.
    The plaintiff, a taxpayer, commenced the action against the city of 'Utica, Henry Stappenbeok, Thomas E. Kinney, as mayor, and John A. Cantwell, as clerk of the city, defendants, to vacate and set aside as illegal and void certain acts of the common council, and to restrain the mayor and clerk from the execution and delivery of a contract, which by resolution the Common council had directed the mayor and clerk to enter into with the defendant Stappenbeck for the removal of garbage from the city and the reduction thereof for the period of ten years.
    The defendant, The City of Utica, and Cantwell, as clerk, answered jointly, alleging the validity of the proceedings of the common council, and demanded judgment:
    
      First '. That said contract with Stappenbeck be adjudged to be legal and valid, and the mayor and clerk be required to execute and deliver the same.
    
      Second. That the injunction herein be dissolved.
    
      Third. Such other and further relief, order and decree as may be just and equitable, besides costs of, this action.
    The defendant Stappenbeck answered, separately demanding the same relief in his behalf.
    The defendant Kinney, as mayor, appeared in the action by James Coupe, his attorney, but interposed no answer and took no part in the trial or in any of the proceedings, in the action.
    None of the defendants served their answer upon any other defendant, and the defendant Stappenbeck did not nor did any of the defendants serve their answer upon the defendant Thomas E. Kinney, pursuant to section 521 of the Code of Civil Procedure.'
    The plaintiff served notice of trial upon all the defendants.
    The defendants, the city and Cantwell, served the usual notice of trial on plaintiff’s attorneys/ but served no notice of trial upon the other defendants.
    The defendant Henry Stappenbeck served no notice of trial whatever, either upon the plaintiff’s attorneys or upon any of the other defendants in the action or upon their attorneys, respectively.
    The action was tried and findings of fact and conclusions of law were made and filed — the conclusions of law as follows:
    I. That said contract was and is a valid contract and binding upon said city. ¡
    II. ' That said mayor and clerk should sign the same as directed by said common council. •»
    III. That the .injunction herein should be dissolved and the complaint dismissed.
    IV. Judgment is, therefore, rendered accordingly in favor of the defendants in accordance with the above findings and conclusions, with costs in favor of said defendants, the City of Utica and John A. Cantwell, as clerk, and with costs in favor of defendant Henry Stappenbeck.
    Judgment in the action was thereupon, on motion of Gr. C. More-house, for defendants, the City of Utica and John A. Cantwell, as clerk, and S. M. Lindsley for defendant Stappenbeck, entered in Oneida county clerk’s office whereby it was ordered, adjudged and decreed:
    I. That the contract mentioned in the complaint between the defendant Henry Stappenbeck and the defendant the City of Utica is a valid contract and binding upon said city.
    II. That said mayor and clerk sign the said contract as directed by the common council of said city.
    III. That the injunction herein be and the same is hereby dissolved.
    IY. That the plaintiff’s complaint herein be and the same is hereby dismissed upon the merits.
    Y. That said defendants, the City of Utica and John A. Cant-well, as clerk, do recover of the said plaintiff the sum of $152.36, their costs and disbursements herein, and that they have execution therefor, and that the defendant Henry Stappenbeck recover of the .said plaintiff che sum of $76.83, costs and disbursements herein, and have execution therefor.
    A copy of the judgment was served on the defendant Kinney and upon his attorney.
    This motion came on to be heard upon an order to show cause why the following provisions contained in a judgment, to wit: “ II. That the mayor and clerk sign said contract as directed by the common council of said city,’ should not be ordered vacated and stricken out of said judgment, and said judgment be corrected and amended accordingly, and why the defendant Thomas E. Kinney should not have such other or further order and relief in the premises as may be just and'equitable.”
    
      James Coupe, for the appellant Kinney.
    
      G. C. Morehouse, for the respondents City of Utica and Cantwell.
    
      S. M. Lindsley, for the respondent Stappenbeck.
   Nash, J.:

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; McGuckin v. Millbank, 83 Hun, 473.) And also with notice of trial. (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. ;  